Eye doctor punished(fired) for peeking at records

Before I tell you a tale of an unlucky doctor and medical records, let us for a moment know what is brewing in Malaysia with regards to privacy.

Doing some research, I know now that our Constitution of Malaysia does not specifically recognise the right to privacy (existing laws with implications for privacy include the Communications and Multimedia Act (CMA), the Anti-Corruption Act, the Companies Act, the Computer Crimes Act (CCA), modeled after the United Kingdom’s Computer Misuse Act of 1990, and section 509 of the Penal Code), but does provide for several related rights, including freedom of assembly, speech and movement(historically, the government has circumscribed all of these rights by law or practice in the name of anti-terrorism. The most controversial of these laws remains the Internal Security Act (ISA), which was originally enacted in the 1960’s in response to Communist insurgency).

However, you maybe aware that our Malaysian Ministry of Energy, Communications and Multimedia (MECM) has begun drafting a new personal data protection bill.with e-commerce concerns and the desire to comply with the adequacy provisions of the European Union Data Protection Directive (http://www.kettha.gov.my/en/content/ministry-finalising-draft-personal-data-protection-bill). I am unable to know more about this development, so I am leaving this to rest as-is basis from their official website.

The Bill aims to regulate the collection, possession, processing and use of personal data by any person/organisation (“the data user”), including the government, so as to provide protection to an individual’s (“the data subject’s”) personal data and safeguard the individual’s privacy. The legislation will also establish a set of common rules and guidelines on the handling and treatment of personal data by any person/organisation. Amongst the stated objectives of the Bill are as follows:

(i) to provide adequate security and privacy in handling personal information;
(ii) to create confidence among consumers and users of both networked and nonnetworked industries;
(iii) to accelerate uptake of e-transactions;
(iv) to promote a secure electronic environment in line with Multimedia Super Corridor
objectives.

So much for an introduction about privacy concerns in Malaysia, and now for the tale of the unlucky doctor from Stockton, CA.

Who was this doctor?
Dr. Abe Magallanez, an optometrist was employed with  Kaiser Permanente(founded in 1945, Kaiser Permanente is one of the USA’s largest not-for-profit health plans, serving more than 9 million members, with headquarters in Oakland, California) at Stockton ( the 13th largest city in the State of California, USA).

What did he do “wrong” ?
Kaiser his employer, said he looked into his wife and his two children (patients) medical records.

How does Magallanez feel about this “wrong”?
“I think it’s important not only as a (health) provider but also as a father that my family’s health and well-being are being met,” Magallanez said. “That is one of my responsibilities.”

He said even his family members gave verbal permission to review their records.

How does Kaiser view this “wrong”?
Kaiser thinks otherwise, “reviewing family records without written consent violates federal law and company policy, both of which are strictly enforced.”

Kaiser issued a statement, saying access to members’ personal health information is “strictly limited only to those situations where there is a clear clinical need.”

It further said, “Kaiser Permanente members can authorize the release of their medical records to others, but that release must be in writing, based on HIPPA (federal) or California privacy law. Employees who violate our confidentiality policies are subject to disciplinary action, including termination.”

What is Magallanez doing about this?
Magallanez is suing Kaiser in federal court. His suit also alleges his labor union abandoned him.

What does his labor union say to his allegation?
The union says it stood up for him but further efforts were futile. Karen Sawislak, executive director of Engineers and Scientists of California, Local 20, said the union stood by Magallanez through three grievance procedures.

A local optometrist’s panel and the executive board both upheld the decision not to take the case to arbitration, she said.

“The board decided that the particular conduct alleged – this case basically would not prevail,” Sawislak said.

How did it all begin?
When his son got a rash, a dermatologist prescribed a medication that didn’t work. Magallanez checked the record and discussed his son’s case with the dermatologist.

Was Magallanewz presumptuous when he had intervened in cases outside his specialty as an optometrist?

“I don’t think it was ever arrogant,” Magallanez replied. “My firm belief is that all providers, we’re all human, we make mistakes. And if someone can look at it a different way, maybe there’s some light to it.”

As Magallanez was unemployed, did he seek unemployment from Kaiser?
YES he did, but was refused, an administrative law judge even said he deserved it.

What was the court’s opinion?
Magallanez’ court papers quote the opinion: “Given that the Plaintiff had authorization from each of his family members … the Plaintiff’s actions do not constitute a deliberate violation but rather a good faith error in judgment.”

Therefore, the judge reasoned, Kaiser’s stated reasons for Magallanez’ firing must be a pretext. “The plaintiff was discharged for reasons other than misconduct in connection with his most recent work,” the judge concluded.

What is the view from HIPPA?
The state Office of HIPPA Compliance and Implementation said the Health and Safety Code (Section 123110), says patients can inspect their records. But they must submit written requests.

As for family permission, it does not need to be in writing by law, but hospitals are allowed to require it as policy. Kaiser does.

What now?
Magallanez says he has gone bankrupt.

Magallanez complained against the union to the National Labor Relations Board. The regional board dismissed his claim. Magallanez is appealing to Washington.

Magallanez admits he erred. Still, he said, a man should be able to help his family. “I don’t believe it was a fair and just decision,” Magallanez said.

Adapted from an article by By MIchael Fitzgerald, Record Columnist, Recordnet.com, posted May 13, 2012, with Q&A format of story by R. Vijayan.