BILL ANALYSIS �
AB 439
Page 1
ASSEMBLY THIRD READING
AB 439 (Skinner)
As Amended May 18, 2011
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Hagman, Huber, | | |
| |Huffman, Jones, Monning, | | |
| |Wieckowski | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Establishes an affirmative defense against specified
liability under the California Medical Information Act.
Specifically, this bill provides that:
1)In an action brought by an individual(s) pursuant to Civil
Code Section 56.36(b) on or after January 1, 2012, the court
shall award any actual damages, and reasonable attorneys' fees
and costs, but may not award nominal damages for a violation
of this part if the defendant establishes all of the following
as an affirmative defense:
a) The defendant is a covered entity, as defined in Code of
Federal Regulations Section 160.103 of Title 45;
b) The defendant has complied with any obligations to
notify all persons entitled to receive notice regarding the
release of the information or records;
c) The release of confidential information or records was
solely to another covered entity;
d) The defendant took appropriate preventive actions to
protect the confidential information or records against
release, retention, or use by any person or entity other
than the covered entity that received the information or
records, including, but not limited to,:
i) Developing and implementing security policies and
procedures;
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ii) Designating a security official who is responsible
for developing and implementing its security policies and
procedures, including educating and training the
workforce;
iii) Encryption of the information or records; and,
iv) Protection against the release or use of the
encryption key and passwords.
e) The defendant took appropriate corrective action after
the release of the confidential records or information and
the covered entity that received the information or records
immediately destroyed or returned the information or
records;
f) The covered entity that received the confidential
information or records did not retain, use, or release the
information or records; and,
g) The defendant has not previously violated this part or,
in the court's discretion, despite the prior violation,
application of the affirmative defense is found to be
compelling and consistent with the purposes of this section
to promote reasonable conduct in light of the all the
facts.
2)A defendant shall not be liable for more than one judgment on
the merits for a violation of this subdivision.
EXISTING LAW provides that in addition to any other remedies
available at law, any individual may bring an action against any
person or entity who has negligently released confidential
information or records concerning him or her in violation of
this part, for either or both of the following: 1) nominal
damages of $1,000. In order to recover under this paragraph, it
shall not be necessary that the plaintiff suffered or was
threatened with actual damages; 2) the amount of actual damages,
if any, sustained by the patient.
FISCAL EFFECT : None
COMMENTS : A negligent release of confidential medical
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information or records may be remedied by an action for damages
under the California Medical Information Act (CMIA). In
addition to an award of actual damages, the CMIA allows recovery
of nominal damages of $1,000 for each violation. Prompted by a
recent law suit, the author is concerned that this general rule
may lead to inappropriate results in particular types of cases
where the defendant has conducted itself reasonably, and a
measure of damages that may be out of proportion to the gravity
of the harm or the financial penalty needed to deter careless
behavior. The bill does not seek to change the outcome or the
law applicable to any pending case, but to revise the law to
avoid incongruous results in future cases.
The author has conducted extensive negotiations among interested
stakeholders in this highly sensitive area over many months. As
proposed to be amended, the bill reflects what the author
believes to be an emerging consensus, although further revisions
are expected as her negotiations proceed.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0000705