Professionalism in the Pharmacy: Gossip or a HIPAA Violation?

This month’s case looks at a situation where a pharmacy was sued because of some less-than-professional behavior by the pharmacy staff. The court was left with having to decide whether any actual laws had been broken.

The Facts

The incident which resulted in this case took place in a Louisiana Walgreens. A pharmacy tech accessed her Facebook account on her personal cell phone at work and saw an unflattering picture that the plaintiff had posted of herself. The tech then showed this picture to the pharmacist and another tech, and the three women had a conversation behind the pharmacy counter about why the plaintiff would have posted such an unbecoming picture of herself. According to the first tech, in the picture the plaintiff was crying and had mucus coming out of her nose.

The Walgreens store manager noticed the techs and the pharmacist talking and looking at a cell phone, and she reprimanded the techs for using their cell phones in the pharmacy. She also questioned them about the incident, but based on what they said (that they didn’t understand why the plaintiff would post a picture of herself crying), and the fact that the plaintiff was not a customer of the store, the store manager determined there had been no HIPAA violation.

However, a customer who knew the plaintiff heard the techs and the pharmacist discussing the plaintiff by name, and in a deposition the customer stated that the pharmacy employees said that the plaintiff was “crazy for posting and knowing she’s on crazy medicine.”

The plaintiff sued Walgreens, claiming that she suffered injuries and damages which were attributable to the negligence of the Walgreens employees and their failure to abide by HIPAA. Walgreens made a motion to dismiss the case, arguing that 1) there was no HIPAA violation, 2) if there were a HIPAA violation, it should be enforced by the United States Department of Health and Human Services Office for Civil Rights (OCR) through the imposition of fines and that the plaintiff had not filed a complaint with OCR, and 3) that because the plaintiff was neither a patient nor a customer of the pharmacy, there could be no negligence.

Story continues on page 2

The Court’s Decision

The court looked at the deposition testimony of the pharmacy techs, the store manager and the customer. In its decision, the court wrote “It is evident from the record herein that this suit is based on gossip that the employees of a Walgreens pharmacy engaged in (while at work) about a picture that the plaintiff posted of herself on her Facebook page. While the plaintiff contends that during this discussion, the employees disclosed her confidential pharmacy records or her health condition, i.e., that she (the plaintiff) was "on crazy medicine," the defendants maintain that the discussion focused on the picture itself and negative comments about how the plaintiff looked, and that there was no discussion regarding the plaintiff's pharmacy records or her health condition. Regardless of the substance of the conversation about the plaintiff by the Walgreens' employees, in order for the plaintiff to succeed in her claim against the defendants, it was essential for the plaintiff to establish that she was a customer of Walgreens such that the employees who were talking about her knew (or could have known) what medications she was taking. The evidence offered by the defendants pointed out the absence of factual support for this essential element of the plaintiff's claims—both of the Walgreens' employees testified that they had never seen the plaintiff at the Walgreens pharmacy and that she was not a customer of Walgreens. In response to the motion, the plaintiff failed to present any competent evidence establishing that she would be able to satisfy this element of her evidentiary burden of proof at trial.” Thus the court dismissed the case in its entirety.

Practically Speaking

While this case did not result in a HIPAA violation, it is easy to see how one might have happened under similar circumstances, had the plaintiff been a customer of the pharmacy. Gossip has no place in a pharmacy, and social media should not be used in and around the pharmacy during work. Doing so can expose you and your pharmacy to possible liability.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly Director of Periodicals at the American Pharmacists Association.