HIV patients sue after records lost

Hospital worker left files on MBTA

By Elizabeth Cooney
Globe Correspondent / May 21, 2009

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Four HIV-positive patients whose records were left behind on an MBTA train by a Massachusetts General Hospital employee are suing the hospital, contending their privacy was breached.

In March, the hospital notified 66 patients who received care at its Infectious Disease Associates outpatient practice that billing records bearing their names, Social Security numbers, doctors, and diagnoses had been lost by a manager who was riding the Red Line. She had brought the paperwork home for the weekend, but left it on the train when she returned to work Monday morning, March 9, according to a hospital security report.

Last week two of the 66 patients filed a breach-of-privacy suit in Suffolk Superior Court against the hospital and the unidentified billing manager. Two more have since joined them. All four unnamed patients are HIV-positive. The legal action was first reported in the weekly newspaper Bay Windows.

The plaintiffs' lawyer, John Yasi of the Salem firm Yasi and Yasi, said in an interview he has filed a motion to make the suit a class action that could cover all 66 patients, a significant number of whom are HIV-positive.

"The damages that jump out are the emotional distress surrounding the loss of obviously very sensitive medical information and, secondarily, the loss of personal security information," he said. "A Social Security number in reality may lead to identity theft, which we all know is a nightmare."

The plaintiffs want to know whether the billing manager still works at the hospital and whether she still has access to their records, Yasi said, as well as what policies have been put in place to prevent this from happening again. According to court documents, Mass. General rules forbid taking private patient information out of the hospital.

Mass. General officials declined to be interviewed, but said in a statement that doctors had called patients to apologize. "We have learned valuable lessons from this difficult situation," the statement said. "We are strengthening our efforts to protect patient health information through such means as enhanced training programs and by identifying and limiting situations that could put health information at risk."

Several patients have contacted the Gay and Lesbian Advocates and Defenders with concerns about the lost records, GLAD lawyer Ben Klein said. In his 15 years at GLAD, calls concerning HIV privacy breaches are among the most frequent the Boston group gets, he said, but this case is unusual because of the number of people affected.

"Although much has changed about HIV over the years, one of the things that hasn't changed is that for so many people the public disclosure of HIV status is still profoundly distressing and harmful," he said. "Even though we don't know what has happened to the records, the sense of powerlessness that people have about not knowing what has happened to this very sensitive health information is profoundly distressing."

GLAD and three other groups - the AIDS Action Committee of Massachusetts, Justice Resource Institute Health, and the Health Law Clinic of the Legal Services Center at Harvard Law School - are trying to arrange a meeting with Mass. General to discuss ways to protect patient privacy.

"Litigation doesn't always accomplish the goals people want it to," Klein said. "Our goal is to ensure that there are strong policies in place to prevent this from happening again and to ensure that Mass. General is responsive to" patient needs.

Elizabeth Cooney can be reached at