On August 30, 2016, the Wisconsin Court of Appeals (“Court”) affirmed the circuit court’s decision that a plaintiff had not stated a claim on which relief could be granted in an action against a hospital and its employees for alleged violations of Wis. Stat. § 146.82, regarding the confidentiality of health care records, and Wis. Stat § 146.83, regarding access to patient health care records. In doing so, the Court held that: (i) an employee’s internal access to a patient record is not the type of conduct governed by Wis. Stat. § 146.82, which, according to the Court, governs releases of patient information only outside the organization; and (ii) Wis. Stat. § 146.83(4)(b) prohibits the wrongful withholding or concealment of a patient’s actual health care record and does not apply to information related to an internal investigation of access to a patient health care record.
The plaintiff, a former patient at the defendant’s hospital, requested and received an audit trail from the hospital of the persons who had accessed his health care records. Upon review, the plaintiff noted that three employees of the hospital (two employees were named defendants in the suit) had accessed and observed his records and contended that he had not given authorization or consent for the employees to access his records. The plaintiff alleged the employees had failed to properly follow hospital policies and procedures regarding obtaining consent prior to viewing a patient’s health care record and did not have a legitimate reason for viewing the records. The hospital performed an investigation into the incident but did not provide the plaintiff with the results of such investigation.
The plaintiff sued, contending that the defendant employees violated Wis. Stat. § 146.82, which prohibits a health care provider from releasing patient health care records absent certain circumstances, and the defendant hospital violated Wis. Stat. § 146.83, which allows a patient to access his or her health care records upon submitting a statement of informed consent, and sought punitive damages. Specifically, the plaintiff alleged that the employees did not have informed consent to see his records, in violation of §146.82, and defendant hospital improperly concealed or withheld patient health care records in violation of Wis. Stat. § 146.83(4)(b) by blocking and hindering him from investigating the reason why and authority upon which the employees accessed his records. Wis. Stat. § 146.84(1) imposes civil liability for violations of Wis. Stat. §§ 146.82 and 146.83. The complaint also alleged similar violations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
The circuit court granted the employees’ and hospital’s motions for dismissal for failure to state a claim upon which relief could be granted, reasoning that to state a claim under Wis. Stat. Ch. 146, the plaintiff needed to allege that the employees had “released, published or disclosed” his health care records “to other people” and allege that the employees “briefly accessed” his health care records without the patient’s knowledge was insufficient grounds.
The Court affirmed the circuit court’s decision dismissing the plaintiff’s suit. The Court agreed with the defendants’ assertion that in Wis. Stat. § 146.82, the term “release” requires disclosure of the patient’s health care records to someone outside the organization holding the records and that disclosure inside the organization was insufficient. While the term release was undefined by the statute, the Court looked to the surrounding statutes and analyzed potential results to assist in its interpretation.
First, the Court considered Wis. Stat. § 146.816, which was enacted in 2013 to harmonize Wisconsin law with HIPAA. Wis. Stat. § 146.816 exempts HIPAA covered entities such as hospitals and other health care providers from the confidentiality requirements of Wis. Stat. § 146.82 where their use, disclosure or request for disclosure of protected health information in a health care record conforms to federal legal requirements and is made for the purposes of treatment, payment or health care operations. After significant discussion highlighting the unclear interplay between Wis. Stat. § 146.816 and Wis. Stat. § 146.82 and noting that interpreting the statutes in context with one another yields more questions than answers, the Court observed that it must interpret statutes reasonably in order to avoid absurd or unreasonable results.
Ultimately, the Court determined that interpreting “release” to include dissemination of patient health care records by the organization holding the records to its own employees would lead to unreasonable results. The Court reasoned that such an interpretation would: (i) subject employees to liability even when health care record information was accessed accidentally as opposed to intentionally; (ii) require employees to have to prove the difficult, perhaps impossible, fact that access fell within one of the permissible circumstances even years later; and (iii) require health care organizations to undertake the unreasonable burden of verifying or documenting a permissible reason every time an employee accessed a patient’s health care record. The Court did not agree that the legislature intended such results when enacting Wis. Stat. § 146.82. The Court therefore held that an employee’s internal access to a patient health care record is not the type of conduct governed by Wis. Stat. § 146.82, which governs the release of the records only outside the organization. The Court noted, however, that employees are still subject to the requirements of HIPAA when accessing, using and disclosing protected health information and that, while not subject to a private right of action under federal law, they are subject to civil and criminal penalties.
With regard to the plaintiff’s claim that the hospital violated Wis. Stat § 146.83(4)(b) when the hospital did not provide the plaintiff with the results of its investigation, the Court held that Wis. Stat. § 146.83(4)(b) clearly and unambiguously only applies to the concealment or withholding of patient health care records, not the result of a hospital’s internal investigation. The term “patient health care records” refers to only records related to the health of a patient prepared by or under the supervision of a health care provider. Because the defendant’s complaint only alleged that the hospital had concealed results of an investigation, it failed to state a claim that the hospital violated Wis. Stat. § 146.83(4)(b).