The only thing necessary for the triumph of evil
is for good men to do nothing.
Edmund Burke- (1729-1797), Irish philosopher, statesman.
I was visiting all of my grandparents at the Serendipity Village Rest Home early this fine Saturday morning. The Serendipity is the local nursing home in our little Texas Hill Country town. We were out in the front yard enjoying the morning before the afternoon summer heat came to chase us back into the air conditioning. Across the street a crowd was gathering under the billboard owned by Mr. Heiligenthal, successful local business man and Fightin’ Texas Aggie. Mr. Heilingenthal donated the use of the billboard to the local chapter of Citizens against Lawsuit Abuse after “Sleazy” Slovacek, our local ambulance chasing lawyer had asked to rent it to advertise for cases against nursing homes. The story is that Mr. Heilingenthal made his donation of the space the very day that Sleazy approached him.
“Hi Mr. Heiligenthal,” I called.
“Well, hello, Suzanne Roberta Moekle,” he responded. “Come join us later when your visit is over. We’ll be here a while!”
The crowd across the street was the local chapter of Citizens against Lawsuit Abuse discussing and celebrating the passage of H.B. 4 and tort reform during the recent legislative session. A cross-section of the community was there, including business owners, former employees of small businesses run out of business by aggressive lawsuits, and licensed professionals like Dr. Eberhardt, Sam Hershey (the Serendipity’s owner and administrator), and Sammi Chowdry (the DON).
Suddenly, two cars drove up. Two TDHS surveyors got out. One was Iris England, the tall, shapely, beautiful, blonde, intelligent and eminently reasonable surveyor who lives in our area. The other was Rhoda Reuter, a surveyor who is, to say the least, not eminently reasonable. While Rhoda looked purposeful, Iris had a disgusted look on her face. She always wore that face when paired with Rhoda.
I could guess why they were there. It had to do with a complaint that was called in by Sam himself having to do with Herman and Sherman Golczynski, twin brothers residing at the Serendipity.
Herman and Sherman have been inseparable since birth. Folks say that’s because their greatest pleasure in life is arguing with each other. Herman and Sherman owned a big farm north of town that they had farmed together since childhood. After their parents died, they could have partitioned it and lived on the separate parts. Instead, they built their houses next to each other and worked the land together so that they could more conveniently argue their particular dispute of the day.
They recently moved to the Serendipity together and insisted on sharing a room. They continue arguing to the dismay of Sam. The rest of the residents are used to it having grown up with Herman and Sherman. They just ignore the twins.
The incident that Sam called in arose from an argument that Herman and Sherman had over the television set in their room. Herman and Sherman like to take naps in the afternoon and then to wake up and watch a little daytime TV before suppertime. Herman likes Oprah and Sherman likes Judge Judy. The two shows come on at the same time in our community so Herman and Sherman worked out an arrangement to alternate days.
On this particular day, Oprah was going to host Herman’s favorite actress, Sophia Loren. Unfortunately for Herman, it was Sherman’s turn to watch Judge Judy. Herman tried to negotiate with Sherman to no avail. So, right after lunch, Herman snuck back to the room early and hid the remote. The twins settled down for a nap. Herman woke up before Sherman and changed the TV channel to Oprah. Sherman woke up and realized what was happening and became livid. While hollering at Herman, Sherman grabbed the water pitcher and threw it at Herman, spilling water all over the floor between the beds. The water pitcher hit the wall instead of Herman, and so Sherman got out of bed and went for Herman. Before he could get to Herman, Herman kicked out at Sherman causing Sherman to slip on the water he had spilled and fall on his rear, badly bruising his tailbone.
Sam investigated and called in the incident to TDHS based on alleged resident-on-resident abuse, precipitating the visit by Iris England and Rhoda Reuter. Also, unbeknownst to Herman and Sherman, Sherman’s deadbeat son Sherman Jr. contacted Sleazy Slovacek to go after the Serendipity even though Sherman Sr. was his own responsible party.
As Iris and Rhoda walked up the sidewalk, Sam Hershey and Sammi Chowdry came running back to the Serendipity from across the street. The survey began.
Hours passed. Across the street, the Citizens Against Lawsuit Abuse set up a picnic under a giant Live Oak near the billboard. I started to gather my grandparents to go back into the Serendipity for lunch when I noticed Sleazy Slovacek’s BMW drive up behind the Serendipity. There was a passenger with him who looked like the pompous blowhard of a lawyer from San Antonio to whom Sleazy refers nursing home cases.
I got my grandparents back inside and then went out the front door and walked around the parking lot to the back door of the Serendipity. There, I saw Sleazy and Rhoda Reuter the surveyor deep in conversation. Nearby, was the pompous blowhard of a lawyer from San Antonio holding a tape recorder to the face of a C.N.A. employed at the Serendipity. The C.N.A. was holding what looked to be a fifty-dollar bill. I could hear the C.N.A. saying something into the tape recorder about the psychological condition of both Herman and Sherman. Then, just as I saw Rhoda handing some handwritten documents that had the words “Surveyor Worksheets” to Sleazy, Iris England opened the back door. She took in the scene before her and yelled:
“Rhoda, I’m gonna’ do a tap dance all over your head!!!!”
They all froze and stared at Iris.
Commentary:
The first question here is: where to begin?
Let’s begin first with the C.N.A. giving the lawyer protected health information without the consent or authorization of Herman and Sherman. Because the Serendipity is a “covered entity”, this is a violation of HIPAA. The problem for the facility is that it will not be the C.N.A. who suffers any HIPAA consequence from her actions in giving out and perhaps selling protected health information. HIPAA reserves its punitive actions for the “covered entity” – the Serendipity. And because this is an intentional disclosure for money-the penalties could be harsh. The Serendipity will need to show that it has created and implemented privacy policies. It will need to show that it has a disciplinary procedure for employees who do this sort of thing.
Another complicating factor has to do with the “minimum necessary” rule in HIPAA. That is the rule that says, among other things, that your employees should have only the “minimum necessary” protected health information to adequately do their jobs. Does a C.N.A. need information about the psychological condition of a resident? And, if you don’t give the C.N.A. such information because of HIPAA, is a TDHS surveyor going to come in, ask a C.N.A. a question about a resident and then cite a deficiency because the C.N.A. doesn’t know something the surveyor thinks the C.N.A. should know? Prepare to be whipsawed between OBRA and HIPAA.
Let’s look at the surveyor’s role in the story. Rhoda Reuter has probably violated a criminal law. She has disclosed confidential information in contravention of the Texas Government Code and the Texas Human Resources Code. She has committed, at the very least, a criminal misdemeanor. There are probably other State and Federal laws she has violated given that she is providing official state documents to an outside party without authorization or a court order.
You also must ask yourself, would a surveyor who surreptitiously takes information to a plaintiff’s personal injury attorney orchestrate a survey in such a way as to have damaging information on the facility to take to that attorney?
It is ironic that Rhoda has probably not violated HIPAA. That is because TDHS is not considered to be a “covered entity” in this instance because TDHS is not providing health care at the facility. The two lawyers are not covered entities either.
What about Sleazy and the pompous blowhard San Antonio lawyer? They had no authorization or consent to receive information on Herman and Sherman. And, aren’t they complicit in a crime being committed by the surveyor? And, even if Sherman had hired them and consented to allow them to get information, they had no right to Herman’s information without his authorization or consent. The two attorneys are obtaining confidential information on Herman (a third person) in order to build a case against the Serendipity in violation of Herman’s legal right of confidentiality.
There is a State Bar Rule, Rule 4.04 which prohibits a lawyer from obtaining evidence on behalf of his client by violating the legal rights of a third person like Herman. There are probably other violations because Sleazy was complicit in a situation where Rhoda Reuter is breaking the law and money changed hands with the C.N.A.
Will you ever see a plaintiff’s personal injury lawyer have a grievance filed against him for this sort of behavior? Who knows? If litigation is going on, it may be a difficult decision for your insurance defense lawyer to file such a grievance because Rule 4.04 prohibits lawyers from filing such grievances solely for the purpose of affecting the outcome of litigation. The insurance defense lawyer could end up having a grievance filed against him if he reports! He can’t even advise Herman or the Serendipity to do so without this risk. Many lawyers wait until a case is over to file such a grievance-which could take years. By then, the unscrupulous Sleazy could have run away with the policy limits.
Providers need to ask their insurance defense lawyers about this if there is any indication that anything similar to the above story has happened in their case. If a surveyor, without a court order, has provided surveyor worksheets to a plaintiff’s personal injury attorney, a complaint needs to be filed with TDHS. If a plaintiff’s personal injury lawyer has received confidential information from present or former facility employees, consult your personal lawyer or general counsel as to your exposure under HIPAA or other laws and any recourse against the offending lawyer.
Hearing Iris holler, the folks at the Citizens against Lawsuit Abuse picnic came running to the scene. They saw what was going on and begin to surround the two lawyers, disgust evident on their faces. Sleazy and his buddy made a break for Sleazy’s BMW. As Iris perp-walked Rhoda to her car, the townspeople ran the two lawyers all the way out of town.
Inspired by similar events
To be continued…
For more information on this subject, contact Jerri Lynn Ward with your specific question(s).
All information in this article and on this site is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2003 by Garlo Ward, P.C., all rights reserved.
Lakeway, Texas 78734 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
