Transcript THE STATE OF CONFIDENTIALITY LAW

THE STATE OF CONFIDENTIALITY LAW
A Presentation for ALRP
The business of relationships.
9701787.2
The business of relationships.
OVERVIEW
•Examples of cases
•Summary of law
1. Constitution
2. Statutory Law
3. Case Law
•Approaches to breach of confidentiality
The business of relationships.
"Given the most publicized aspect of the AIDS disease,
namely that it is related more closely than most diseases
to sexual activity and intravenous drug use, it is difficult
to argue that information about this disease is not
information of the most personal kind, or that an
individual would not have an interest in protecting against
the dissemination of such information."
Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988)
The business of relationships.
EXAMPLES OF CASES
•Darlene
•Randy
•Stan Cooper
The business of relationships.
STATUTORY AUTHORITY
1. Cal H & S Code
2. Cal Ins Code
3. Privacy Act of 1974, 15 USC 552
4. Cal Confidentiality of Medical Information
Act
The business of relationships.
CONSTITUTIONAL LAW
1. Griswold v. Connecticut
•
Whalen v. Roe
•
Nixon v. Administrator
2. California
•
1972 – Article 1 Section 1
The business of relationships.
COMMON LAW
1. White v. Davis
2. See Elder, “Privacy Torts”
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REMEDIES
1. Early Negotiation
• In interests of client
• Letter
2. Litigation
• Factors to consider
• Review complaint
The business of relationships.
PLAINTIFF’S THEORIES OF LIABILITY
Negligence
Negligence per se
Breach of Express and Implied Warranty
Fraud
Fraudulent Concealment
Intentional and Negligent Infliction of Emotional Distress
Loss of Consortium
Punitive Damages
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DEFENSES
1. Prior disclosure/Waiver
2. Public Interest disclosure
•
Reporting case to DHS or CDC – H&S 120980
•
Reporting to local health officials – H&S 1603.1
•
Reporting to blood banks – H&S 1603.1
•
Disclosure to spouse, partner or needle sharer –
H&S 121015
The business of relationships.
DEFENSE
1. Statute of limitations
2. No causation
3. No damages
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STATUTE OF LIMITATIONS
Before January 1, 2003:
1. 1 year for personal injury claims
2. 3 years for fraud
3. Child - 1 year after 18th birthday
After January 1, 2003
1. 2 years for personal injury claims
The business of relationships.
RUNNING OF STATUTE OF LIMITATIONS
Jolly v. Lilly: accrues on date of injury
1. Delayed until plaintiff suspects or should
suspect that someone did something wrong
2. Held to actual knowledge and what a
reasonable investigation would have
revealed
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TOLLING OF STATUTE OF LIMIATIONS
Tolled for
1. fraudulent concealment
NOT tolled by:
1. Pendency of a class action
The business of relationships.
MICRA DEFENSE FOR PHYSICIANS
General damages capped at $250,000
Collateral evidence is admissible
Attorney’s fees set
Judgment is paid in periodic payments
The business of relationships.