California's Confidentiality of Medical Information Act, in addition to its other penalties, provides individuals with the right to sue "any person or entity who has negligently released confidential information or records concerning him or her" and to seek "nominal damages" of $1,000, regardless of whether they suffered actual damages.
The proposed amendment, sponsored by Berkeley Assemblywoman Nancy Skinner, would have given covered entities several "affirmative defenses," including if the organization that committed the breach could show a court it had taken appropriate steps to avoid future breaches.
A number of business and healthcare groups, including San Francisco-based health information technology company McKesson Corp., supported the Skinner bill.
The industry groups "believe that the CMIA should be amended to remove potentially bankrupting liability for inadvertent disclosures that cause no harm to individuals," McKesson spokesperson Kris Fortner said in an e-mailed statement. McKesson said the California Hospital Association, the California Association of Physicians Groups, California Retailers Association, the California Pharmacists Association, the California Association of Health Plans, the California Healthcare Institute, the California Chamber of Commerce, the National Association of Chain Drug Stores, and the Center for Democracy and Technology also supported the amendment.
Holober said the tweak to the amendment worked out Tuesday restores judicial discretion in levying fines even in cases where an entity meets all of the statutory affirmative defenses.
"We had been in favor of letting the judge have discretion," Holober said. "That was not the direction this bill wanted to go— it said there would be no discretion. The amendments create some limits on that. … It would allow the court to not be a rubber stamp."
Before becoming law, the Skinner bill would have to pass the full Senate and be reapproved as amended in the Assembly before the legislature adjourns in September.
Holober said he couldn't speak for the other organizations on their position on the bill after this week's amendment.