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Doctors Nervous About Lawsuits Over Medical Record Breaches

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Sen. Dick Sears (D-Bennington) is leading the effort for new consumer-privacy protections. - JEB WALLACE-BRODEUR
  • JEB WALLACE-BRODEUR
  • Sen. Dick Sears (D-Bennington) is leading the effort for new consumer-privacy protections.
Vermont doctors are worried about a one paragraph provision in a pending privacy bill that would allow patients to sue if their health information is disclosed. Doctors fear it could lead to a flood of lawsuits — even if no harm occurred.

Dr. James Hebert, a general surgeon at the University of Vermont Medical Center, described being in crowded rooms with patients and their relatives and opening up a computer to review medical records. "It is hard to find a nook where only you can see it," he told the Senate Judiciary Committee. "One of the unintended  consequences of electronic medical records is that it makes privacy very difficult," Hebert said. 

Paul Harrington, executive vice president of the Vermont Medical Society, argued the new right to sue was unnecessary. Patients already can file complaints with the U.S. Office of Civil Rights or with the Vermont Attorney General, he said.

Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, countered that the Office of Civil rights rarely imposes sanctions in small privacy breaches. He told lawmakers that other states allow patients to sue, "so you would not be doing anything unusual by creating this private right of action."

The provision allowing lawsuits for breaches in the privacy of health data is one of four areas of protection that the Senate Judiciary Committee wants to provide consumers. The bill also would put restrictions on law enforcement's use of drones, electronic communications and images captured by license-plate readers.

The committee held hearings on the bill in the fall and is spending this week fine-tuning the provisions. Lawmakers had hoped that prosecutors and the ACLU could reach a compromise on the rules that would govern how government might access electronic communications data — but the two sides presented competing drafts Wednesday.

One disagreement was over who should be covered by the rules for limiting access to electronic communications — just law enforcement or any government agency. The ACLU wanted the broadest coverage, but backed off for now.

Another difference: The ACLU wanted a ban on the use of "sting rays" by law enforcement. Sting rays, Gilbert explained, are devices that function like cell towers and intercept communications.

David Cahill, executive director of the Department of State's Attorneys and Sheriffs, argued, "In Vermont, it is already illegal regardless of whether this cool tool exists." However, he agreed that a ban could be included in the bill.

Charles Storrow, a lobbyist representing AT&T, asked that companies have 30 days rather than 20 to respond to requests for data. Lawmakers rejected his request, noting that the bill allowed communication companies to ask a court for more time. Law enforcement could also request a quicker response.

Senate Judiciary Chairman Dick Sears (D-Bennington) wants his committee to vote on the bill this week. Although issues such as legalizing marijuana and an unprecedented vote on suspending a senator have grabbed most of the headlines, Sears said, "This is a historic bill protecting people's privacy."


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