Press Release from the United States Attorney's Office for the Southern District of Florida

January 24, 2007

Naples Man Convicted in Cleveland Clinic Identity Theft and Medicare Fraud Case

R. Alexander Acosta, United States Attorney for the Southern District of Florida, and Jonathan I. Solomon, Special Agent in Charge, Federal Bureau of Investigation, Miami Field Office, announced that a Fort Lauderdale jury today convicted defendant Fernando Ferrer Jr., of Naples, Florida, of all eight (8) counts of a Superseding Indictment, which charged him with one count of conspiring to defraud the United States, one count of computer fraud, one count of wrongful disclosure of individually identifiable health information, and five (5) counts of aggravated identity theft.

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Electronic Hospital's HIPAA Training Key to Winning Summary Judgment in Unlawful Disclosure Action

The Illinois supreme court in Bagent v. Blessing Care Corp. upheld a district court’s summary judgment in favor of a hospital whose phlebotomist employee divulged to a friend while at a tavern after hours that the friend’s sister was pregnant. The sister sued both the employee, who had resigned in lieu of termination for the incident, and the hospital. The district court found that there was no private right of action for breach of confidentiality under state licensing laws or the state constitution, but that the common law claims based on a right to privacy and negligent or intentional infliction of emotional distress could go forward. The district court also found that the hospital could not be held vicariously liable for the action of the employee, although the latter holding was reversed on appeal. The Illinois supreme court subsequently affirmed the holding of the district court. When examining whether the employee’s action was within the “scope of employment,” the court cited to the hospital’s training program and concluded that the tavern disclosure “was not the kind of conduct she was employed to perform.” With respect to whether the employee’s action served the purpose of the hospital, another element of the scope of employment analysis, the court held that no evidence demonstrated that the employee sought to serve the purpose of the hospital by divulging the information. The court noted that the conduct directly violated the “confidentiality agreements” between the employee and the hospital, apparently a reference to the employee’s signature on the hospital’s confidentiality policy and code of conduct. The case demonstrates the importance of maintaining documentation of employee privacy training.