Monday, July 27, 1998
 

OUTPATIENT CLINIC Please forward this document to your insurance carrier so that we can begin discussion of settlement potential.

INSURER Your Insured: DOCTOR Your File No: ######## Incident Date: Jan. 17, 1997

Re: Breach of Medical Confidentiality and Failure to Supervise
Our Client: JANE DOE (DOB: 05/30/79)
Status Post: 2-Stage Breast Reconstruction, Bilateral Tuberous Deformity
Pt. Control No.: ######

Dear Sirs and Mesdames:

As you know, this office is representing JANE DOE in her claims against you. Among these claims, Ms. DOE alleges breaches of medical confidentiality as to surgeries performed by DOCTOR to correct Ms. DOE's congenital breast deformity. The surgeries were performed at CLINIC and DOCTOR was assisted by the CLINIC's employed staff.

Ms. DOE, a young woman of 17 at the time, was quite ashamed of her previous physical condition. Ms. DOE's breasts before the surgeries were described by DOCTOR as "very tiny" and "potato-like". Furthermore, as evidenced from DOCTOR's notes, Ms. DOE went to "great lengths" to keep the public and her peers from discovering her prior condition. Ms. DOE was also quite embarrassed about the necessary surgical correction -- the only persons with whom she discussed the surgeries were close family members who already knew about Ms. DOE's condition.

During one of her visits to CLINIC, Ms. DOE saw STAFFER who was employed by CLINIC as one of the physician support staff at the time of the complained of incidents . And as Ms. DOE would later find out, STAFFER was the mother of CLASSMATE, one of Ms. DOE's classmates.

After the second surgery, Ms. DOE returned to school and to her job. Shortly after returning to school, CLASSMATE -- Ms. DOE's classmate and the daughter of your employee, STAFFER -- passed a handwritten note to Ms. DOE which stated:

"I know what you had done. Don't worry your secret's safe with me. The reason my mom told me [was] because I'm interested in getting a breast reduction, but I wanted to know if there was a lot of scarring, and if you were happy with your plastic surgeon's job: because I was going to get the reduction done in the next 2 months and I wanted to find a good surgeon."

Ms. DOE knew she had little, if any, recourse against CLASSMATE should she disclose Ms. DOE's secret to other classmates, either for malignant reasons or in a fitful spell of gossip. Ms. DOE soon sought advice from a private counselor, and Ms. DOE's mother wrote in complaint to CLINIC on April 29, 1997. Ms. DOE's mother also complained to the Vice Principal of Ms. DOE's school about the violation in order to prevent further repetition by CLASSMATE and to provide a modicum of relief to her troubled daughter.

Ms. DOE also felt betrayed by the fact that your employee, STAFFER, knew of Ms. DOE's condition and her subsequent treatment. This was particularly so, since STAFFER had no part in the diagnosis or treatment of Ms. DOE's condition. Ms. DOE felt that she had been the subject of conversation over hospital staff lunches.

As you know, medical confidentiality is protected by California Civil Code, Part 2.6, §§ 56 et seq. Civil Code Section 56.10, subdivision (c), provides:

(c) A provider of health care may disclose medical information as follows: [¶] (1) The information may be disclosed to providers of health care or other health care professionals or facilities for purposes of diagnosis or treatment of the patient....

Section 56.35 expressly provides for the type of damages recoverable:

"In addition to any other remedies available at law, a patient whose medical information has been used or disclosed in violation of Section 56.10 [⁽¹⁾] or 56.20 [⁽²⁾] or subdivision (a) of 56.26, [⁽³⁾] and who has sustained economic loss or personal injury therefrom may recover compensatory damages, punitive damages not to exceed three thousand dollars ($3,000.00), attorneys' fees not to exceed one thousand dollars ($1,000.00), and the costs of litigation."

Furthermore, Section 56.36 makes such violation of a patient's confidentiality punishable as a misdemeanor. And it has been held that disclosure of such confidential information is an invasion of the patient's right to privacy as guaranteed by the United States and California Constitutions. As the court explained in Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, at pages 678-679:

"The patient-physician privilege [Citation] creates a zone of privacy whose purposes are (1) 'to preclude humiliation of the patient that might follow disclosure of his ailments' [Citations] and (2) to encourage the patient's full disclosure to the physician of all information necessary for effective diagnosis and treatment of the patient [Citations].

"'The patient should be able to rest assured with the knowledge that "the law recognizes the communication as confidential and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure.' [Citation.] The matters disclosed to the physician arise in most sensitive areas often difficult to reveal even to the doctor. Their unauthorized disclosure can provoke more than just simple humiliation in a fragile personality. The reasonable expectation that such personal matters will remain with the physician are no less in a patient-physician relationship than between the patient and psychotherapist. The individual's right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. The state of a person's gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person's bank account, the contents of his library or his membership in the NAACP. We conclude the specie of privacy here sought to be invaded falls squarely within the protected ambit, the expressed objectives of article I, section 1." [Bold added.]

As a result of the foregoing, I hereby offer to recommend to my client that she settle this matter for fifteen thousand dollars ($15,000.00). This recommendation shall remain open for thirty (30) days from the above date and then will be withdrawn without further notice. Please be advised that if an agreement is not reached, any future settlement negotiations will naturally be commensurate with the additional expense and time incurred by this office to reach a resolution of the matter.

If you require any additional information to facilitate your early evaluation of Ms. DOE's claims, please let me know. I look forward to hearing from you and discussing the potential of an early and mutually satisfactory resolution of this matter.

Very truly,
MACHADO & COUSINS
 

Troy Kevin Spears
Attorney for Plaintiff
JANE DOE

1. Patient authorized disclosure; tribunal order or subpoena; other diagnosing or treating professionals; medical payors; medical review and licensing; workers' compensation disputes; etc.

2. Employers in relation to employee benefits.

3. Third party administrators of health care payment programs.