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THE STATE OF CONFIDENTIALITY LAW

A Presentation for ALRP . THE STATE OF CONFIDENTIALITY LAW. 9701787.2. OVERVIEW. Examples of cases Summary of law Constitution Statutory Law Case Law Approaches to breach of confidentiality.

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THE STATE OF CONFIDENTIALITY LAW

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  1. A Presentation for ALRP THE STATE OF CONFIDENTIALITY LAW 9701787.2

  2. OVERVIEW • Examples of cases • Summary of law • Constitution • Statutory Law • Case Law • Approaches to breach of confidentiality

  3. "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)

  4. EXAMPLES OF CASES • Darlene • Randy • Stan Cooper

  5. STATUTORY AUTHORITY • Cal H & S Code • Cal Ins Code • Privacy Act of 1974, 15 USC 552 • Cal Confidentiality of Medical Information Act

  6. CONSTITUTIONAL LAW • Griswold v. Connecticut • Whalen v. Roe • Nixon v. Administrator • California • 1972 – Article 1 Section 1

  7. COMMON LAW • White v. Davis • See Elder, “Privacy Torts”

  8. REMEDIES • Early Negotiation • In interests of client • Letter • Litigation • Factors to consider • Review complaint

  9. 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

  10. DEFENSES • Prior disclosure/Waiver • 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

  11. DEFENSE • Statute of limitations • No causation • No damages

  12. STATUTE OF LIMITATIONS • Before January 1, 2003: • 1 year for personal injury claims • 3 years for fraud • Child - 1 year after 18th birthday • After January 1, 2003 • 2 years for personal injury claims

  13. RUNNING OF STATUTE OF LIMITATIONS • Jolly v. Lilly: accrues on date of injury • Delayed until plaintiff suspects or should suspect that someone did something wrong • Held to actual knowledge and what a reasonable investigation would have revealed

  14. TOLLING OF STATUTE OF LIMIATIONS • Tolled for • fraudulent concealment • NOT tolled by: • Pendency of a class action

  15. MICRA DEFENSE FOR PHYSICIANS • General damages capped at $250,000 • Collateral evidence is admissible • Attorney’s fees set • Judgment is paid in periodic payments

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