Month: September 2015

Breach of Confidentiality Claims: What’s a Patient to Do?

When physicians and other health care providers wrongfully disclose personal health information, patients often ask if they have any recourse against the providers. HIPAA – popularly known as the statute that protects personal health information – in fact does not provide a private cause of action for health information breaches. Instead, HIPAA allows individuals to submit complaints to the Department of Health and Human Services’ Office of Civil Rights, which investigates complaints and imposes penalties where appropriate. HIPAA notwithstanding, South Carolina patients are not without recourse for wrongful disclosures. South Carolina recognizes a cause of action for breach of confidentiality by a health care provider. (For you lawyers out there, the operative case is McCormick v. England, 328 S.C. 627 (S.C. Ct. App. 1997).) SC courts have acknowledged that a duty of confidentiality exists between a physician and his patient, even though SC does not have a physician-patient privilege. A physician’s breach of this duty, “in the absence of a compelling public interest or other justification for the disclosure,” creates an actionable tort. The duty of confidentiality is not absolute, and whether a physician was justified in making a disclosure is a question of fact. To date, the cause of action for breach of confidentiality has only been held to apply to physicians. Breach of confidentiality claims are distinguishable from invasion of privacy claims. Invasion of privacy consists of...

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Liability in the Cyber World

Every week seems to bring another news report of yet another data breach. Large companies – with troves of credit card numbers – are consistently popular targets, along with (as we’ve learned) the federal government’s database of employee social security numbers, and databases that contain information more embarrassing than financially sensitive (see: Sony and Ashley Madison). Health care entities are also being targeted more frequently, as their databases contain both personal and financial information ripe for identity theft and fraud. Meanwhile, more and more business operations are moving online. Clearly, the solution to data breaches is not going to be a return to the days of paper. We’ll leave the technical issues to the coding geniuses who are trying to defend us against the hackers, but there is one protection businesses can adopt now, no coding knowledge necessary: cyber liability insurance. This relatively new insurance product is intended to provide coverage for losses resulting from data breaches. As with all insurance products, the details vary widely. The policies generally cover a variety of expenses arising from data breaches, such as notification costs, credit monitoring, costs to defend claims, and fines. However, some policies may only cover losses arising from negligence or unintentional breaches, but not breaches caused by the intentional misconduct of employees or criminal acts. The process of getting a cyber insurance policy will usually require the insured...

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Business Formation 101: Taking Your Start-Up’s First Steps

There’s a lot of press and chatter around start-ups these days, particularly tech start-ups. Often the conversation revolves around the seed money – sometimes to the tune of millions of dollars – that angel investors are pouring into these companies. But for most entrepreneurs starting a new business, their “seed money” is their personal credit card. They have to do things on a dime to get the company off the ground, and unfortunately, a lawyer is often not in their budget. Legal matters end up relegated to second thought (or third, or fourth). To get those legal matters back to the forefront of the new business owner’s mind (where they belong), here’s a quick-and-dirty, though not exhaustive, list of some basic legal steps critical to launching your company out into the world. Form the business. It’s almost always better to form a business entity (a corporation, limited liability company, partnership, etc.) than to operate as an individual proprietor. What kind of entity you choose is a long discussion, and one that your accountant needs to play a role in as well. For now, you can read our prior post about formation, name reservations, and the misconceptions around “DBAs”. Get yourself licensed. If your business is operating in a regulated profession or industry, you’ll need a special license from the state. In addition, every company needs a general business license....

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