Personal medical information, medical records patient information are highly sensitive and confidential documents that should be safeguarded against unnecessary disclosure without the patient’s consent at all costs. The information contained in a patient’s medical records is private, and may not be disclosed without permission, save a few exceptional circumstances.

What Laws Protect Patient Medical Information?

There are a number of federal laws in place that are designed to protect the privacy of patient medical records, such as the:

• Health Insurance Portability and Accountability Act (HIPPA) Privacy Rule (45 C.F.R. Section 160, and 164A and E),
• HIPPA Security Rule (45 C.F.R. Section 160, and 164A and C), and
• HIPPA Breach Notification Rule (45 CFR Sections 164.400-414).

California additionally offers protection for patient medical records through California Civil Code Sections 56-56.37, also referred to as the Confidentiality of Medical Information Act. Under California law, a patient’s personal medical information, i.e., any individually identifiable information that is kept in physical or electronic form, is protected from unauthorized disclosure by health care providers, health care insurance providers, pharmaceutical companies, and other entities with access to this sensitive information, unless a court order demands such disclosure.

Medical information can include information concerning a patient’s medical history, mental health history, their physical or mental condition, or any course of treatment they are on. Individually identifiable information can include information such as a patient’s name, contact information, Social Security number or any other information that can be combined with publicly available information in order to identify the patient.

Patient Consent To Disclosure

Many times, a patient is referred to a specialist who requires copies of the patient’s medical records. However, the patient’s current doctor is not allowed to provide the patient’s medical records to the specialist without first obtaining the consent of the patient. If a patient wants to consent to the disclosure of their personal medical information, the patient must give permission in writing.

The requirements for providing patient consent to the sharing, releasing or disclosure of confidential medical records are outlined in California Civil Code Sections 56.11, which requires that the patient’s consent must be:

In writing and signed by the patient, the patient’s legal representative, or the beneficiary or personal representative of the patient (if the patient is deceased).

• Specific as to the permissible uses of the disclosed information, including detailing any restrictions or limitations on the disclosure of the patient’s medical records.
• Clear as to who is authorized to release/disclose the medical information concerning the patient, and must be clear as to who is the authorized recipient of the released/disclosed medical information.
• Clear as to the duration that the authorization is valid for.

Remedies For Unauthorized Disclosure

When a patient’s medical information is illegally disclosed or obtained without permission, the patient has a cause of action under California law. When the patient can show that the unauthorized disclosure amounted to some economic loss or a personal injury to the patient, then the patient has grounds for a suit. If you believe your information was disclosed without your authorization in writing and you have been damaged, contact our firm right away to speak with an experienced Los Angeles business attorney who can determine your rights and options.

We also advise businesses on how to substantially limit their liability and ensure their business policies conform to both state and federal statutes on a daily basis. Contact us if you have been accused of disclosing a patient or employee’s medical information without permission, or are unsure if your business is in full compliance with HIPPA and current employment laws.

There has been a lot of political talk lately about the pay gap between male and female workers, and California is one of the more progressive states when it comes to tackling this issue. In October, Governor Jerry Brown took steps to help close that gap in California by signing S.B. 358, which will revise the existing version of the California Fair Pay Act, specifically Cal. Labor Code §1197.5.

The existing law prohibits an employer from paying male and female workers in the same establishment at different wage rates for equal work requiring equal skill, effort, and responsibility. Exceptions exist under the current law, for seniority, merit, quality and quantity of work, or some other bona fide factor other than the sex of the worker. At present, it is a misdemeanor offense to pay workers of opposite sex differently in violation of the law.

Taking effect on January 1, 2016, the law will be strengthened and will incorporate changes, such as:

• Employees are permitted to discuss their own wages, and the wages of others, openly. These changes are designed to promote pay transparency.
• Instead of prohibiting wage differentials between workers of the opposite sex in the same establishment, the new law will prohibit paying workers of the opposite sex differently for substantially similar work, taking into consideration skill, effort, and responsibility associated with the work.
• If there is a wage differential between workers of the opposite sex, the burden is on the employer to affirmatively demonstrate why the wage differential exists, based on seniority, merit, quality and quantity of work, or some other bona fide factor other than the sex of the worker. These factors must be applied reasonably, and must account for the whole differential. This new provision will place a higher burden on employers who are trying to justify a pay gap between similarly situated employees of different sex.
• Employers are prohibited from discharging, discriminating against, or retaliating against workers who seek action under the new provisions of the new law, and any employee who is discharged, discriminated against, or suffers retaliation by their employer for seeking action under the provisions of the new law will be eligible to recover lost wages (including interest and lost benefits), may seek reinstatement or other suitable equitable relief. This change makes it easier for employees to establish a prima facie case against their employer.
• Employers are required to retain records concerning employees’ wages and wage rates for a period of three years, as opposed to the current two years.

What Can Employers Do In Preparation For This Change?

The new law is meant to provide additional protections to employees by placing new burdens on employers. Worker’s rights are important, and it is important that business owners and employers be appraised of the new changes that will be taking effect in the new year concerning employee wages. Any business who has California employees will be subject to these new requirements.

Employers should get ready for this change by evaluating employees’ payment structure and assessing whether there is any potential for problems to arise. Employers have a few months before the law takes effect, in which they can take steps to correct or mitigate any potential employee pay issues. Analyzing any wage differentials and assessing whether any reasonable factors exist that warrants the differential in employee’s pay are just a couple of important steps an employer should be taking at this time. Employers can also advise management of the changes in the law, especially the provisions concerning workers’ new ability to openly discuss wages.

For more information on the ramifications of this legal update, or should you need advisement for any employment-related matter, contact Spotora and Associates, PC today and to speak with a senior level Los Angeles business attorney.

For quite some time the paparazzi in California has relied upon the use of drones – which are unmanned, aerial devices that are operated remotely by a user or operator – to capture photographs of celebrities from afar, usually by piloting the unmanned drones over the private property owned by the celebrities to capture the shot. A new California bill aims to provide celebrities with a little more privacy by prohibiting the use of drones over private property, the LATimes reports.

Drone regulation has been a high-popularized issue in the area of technology law lately, especially in California.  Not only have the paparazzi made quite a bit of use out of drones for photography purposes, but others have taken up flying the contraptions to take photos of the wildfires that have been ravaging California.  The drones have even interfered with firefighting efforts in the recent past.  There have also been problems with drones being used to transport contraband into prison environments. However, many civilians enjoy drone manipulation as a hobby, and do not use their drones to break the law.

New Bill Puts Stop to Paparazzi Invasion of Celebrities’ Privacy

The bill, AB 856, deems flying a drone onto the private property of another for the purpose of taking photographs of video to be a physical invasion of privacy that will not be tolerated.  While previous versions of the bill would have made flying a drone within 350 feet over private property without consent a trespassing violation, the final version of the bill, which will be signed by Governor Jerry Brown in the upcoming weeks, is not as extreme.

Trespass is codified in California Penal Code Section 602 et seq. and already covers a variety of very specific trespassing violations.  Adding another trespass provision for the use of drones to take pictures of someone else, particularly a celebrity, would add more provisions to the already jumbled and dense area of trespass crimes.

The governor rejected many earlier versions of the drone bill as they would have created new crimes by adding new trespassing provisions to the law along with new punishments. In addition, making drone flying for photography purposes would unduly place restraints on a burgeoning drone industry. Rather, the new bill sets out to redefine the existing law to better incorporate invasions of privacy committed with a drone camera.

What Are The Existing Laws on Invasion of Privacy?

Invasion of privacy is based in tort law, and in California case law has established four tort actions based on invasion of privacy:

1. Intrusion into private places, conversations or other matters,
2. Public disclosures of private facts,
3. Presentation of a person to the public in a false light, and
4. Appropriation of another’s image or personality.

Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 214 (1998). The use of drones to take unauthorized photos of celebrities in their homes and on their personal property would be an intrusion into a private place and under California Civil Code Section 1708.8, a person is liable for physical invasion of privacy when they knowingly enter the land of another person without permission for the purpose of capturing any form of visual image of the person whose privacy is being invaded.

This bill is yet another example of how the law must catch up at times to address the legal implications a new technology presents, and it highlights the importance of obtaining proper legal advisement while navigating the complicated world of technology.

If you are working with a new technology or other product/service and do not yet fully understand the legalities and implications of your venture, it is especially important to retain an experienced business attorney for advisement on how to limit your liability and protect any intellectual property rights.