HIV patients sue MGH

by Ethan Jacobs
Monday May 18, 2009

Two HIV-positive patients filed suit against Massachusetts General Hospital (MGH) May 12 alleging a violation of their right to privacy after an MGH billing manager lost a bundle of documents on the MBTA Red Line train in March containing the patients' names and HIV statuses.

The patients, who are not named in the suit, John Doe 1 and John Doe 2, et. al vs. Massachusetts General Hospital and Jane Doe, are being represented by Salem attorneys John Yasi and Robert Mazow. The two patients represented by Yasi and Mazow are not affiliated with seven other MGH patients whose records were left on the Red Line in the same incident who are currently being represented by Gay and Lesbian Advocates and Defenders, AIDS Action Committee, JRI Health and Harvard University's AIDS Law Clinic (see "GLAD, AIDS Action may sue MGH over HIV disclosures," May 7). Yasi and Mazow have asked the court to certify the suit as a class action suit that would be open to all 66 patients whose records were lost on the Red Line in March.

The suit stems from an incident March 9 in which an MGH billing manager left a bundle of billing records on the T on her morning commute to the hospital. According to a letter MGH sent to the patients, the records contained the patients' names, diagnoses, birthdates, medical record numbers, and health insurance information. The affected parties were patients of MGH's Infectious Disease Associates clinic, which treats patients living with HIV. An MGH spokesperson told Bay Windows last week the billing manager violated hospital policy by removing the records from the premises, but the hospital has declined to say publicly whether the employee was fired or otherwise disciplined for the offense.

Yasi said prior to filing the suit he reached out to MGH and asked the hospital to arrange a meeting with his clients to address their concerns. His clients, he said, wanted to know the identity of the billing manager, whether she still works for MGH, and whether the hospital has taken steps to prevent similar confidentiality breaches in the future. Had MGH agreed to provide that information his clients might have chosen not to file a lawsuit, but MGH declined to meet with them, said the attorney.

"We feel that under the circumstances our clients have every right to know who this person [the billing manager] is to determine whether to continue to treat there," said Yasi, who noted his clients are generally satisfied with the treatment they have received at MGH with the exception of the lost billing records. Yasi and Mazow have filed suit against both MGH and the billing manager, who is listed in the suit as Jane Doe.

Valerie Wencis, a spokesperson for MGH, said she could not comment on ongoing litigation, but she said the hospital takes patient confidentiality seriously.

"MGH is and remains highly committed to safeguarding the privacy and security of each patient's medical record and medical information. We sincerely regret that certain materials, some of which contained patient information, were accidentally disclosed. Although inadvertent, and clearly unintentional, we have taken steps to ensure that such an incident does not occur again. Thankfully, in the two months since this incident, there has been no evidence or information to suggest that the missing materials have been disseminated or even reviewed by any person or entity. MGH alerted each patient involved and immediately notified the appropriate authorities and agencies of the inadvertent loss of these records. MGH cannot comment further, and certainly would not want to discuss any specifics with regard to these patients," wrote Wencis in a statement.

Yasi said his clients suffered severe emotional distress as a result of the confidentiality breach, including "loss of sleep, extreme anger and aggravation, compounded by the fact that they're getting very little information at MGH, especially with respect to the person involved."

Last week GLAD attorney Ben Klein and AIDS Action attorney Denise McWilliams told Bay Windows that MGH had not responded to their own request for a meeting to discuss the lost records. Klein, McWilliams, and attorneys for JRI Health and the AIDS Law Clinic sent MGH a letter requesting a meeting in mid-April, but after more than two weeks without a response Klein and McWilliams said they were strongly considering filing suit against MGH for breach of privacy.

Klein said in the past week MGH has reached out to him, and the HIV/AIDS advocates are currently in discussion with MGH about ways to address the concerns of their seven clients. Klein declined to discuss specific details of the negotiations.

"We have received a response from Mass. General," said Klein. "Their response makes me hopeful we will have a productive conversation with them that, if it goes well, will resolve the concerns that we have."

He said he and the other HIV/AIDS advocates were not involved in the suit filed by Yasi and Mazow. He called their decision to file suit against MGH "premature."

"We had no contact with them in the planning of the litigation. They called me [May 12] as a courtesy to let me know they filed the lawsuit," said Klein.

Mazow said he hopes to secure the support of the HIV/AIDS advocates.

"Their posture may be different, but we're certainly looking to be on the same side of the battle front as they are," said Mazow.

Yasi said if MGH declines to settle and the suit goes to trial he is confident that a jury will find that MGH violated their clients' right to privacy and caused them severe emotional distress. He declined to speculate how much money a jury might award his clients in damages.

"In this case I think it will be very easy for a group of 12 persons who hear this case to conclude that these persons suffered horribly emotionally," said Yasi.

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