Quest Diagnostics sued over fax errors breach, but are they really responsible?

A few days ago, I noted a report from NBC about hundreds of misdirected faxes that were intended for Quest Diagnostics. The report mentioned that a lawsuit had been filed over the breach.

Here’s the press release on the lawsuit, below, but I’m not sure on why it’s Quest being sued. Are they responsible or liable for entities that don’t type in the correct fax number? I’m not saying that they couldn’t have helped after the were notified, but what is their actual responsibility here?  Surely the duty to report any breach to HHS rested with the entities that mis-entered the fax number, unless Quest Diagnostics changed their fax number at some point and failed to notify providers?

I’m waiting to see any motion to dismiss and how Quest’s lawyers respond to this:

The lawsuit, entitled Jane Doe v. Quest Diagnostics, Inc., et al., 15-cv-8992 (LGS), alleges that, for as long as a year, hundreds of medical records, containing the personal and protected data of patients in and around the New York area, were being transmitted to a Brooklyn-based marketing firm – rather than to Quest, the intended recipient. Although Quest was alerted early on to the breach, the company did nothing to prevent the continued transmissions, failed to alert medical providers and patients, and failed to report the breach to authorities. As a result, the personal and sensitive medical information of hundreds of patients was disclosed to unauthorized third-parties, putting their security and privacy at great risk.

Under both federal and state law, it is a violation of law to send protected medical data to unauthorized third-parties. When breaches are discovered, medical service providers such as Quest are required to provide immediate notice to individuals affected. Entities are also required to report such breaches to the Department of Health and Human Services, notify other providers affected or involved in the breach, and alert major media outlets when greater than 500 people are affected. In this case, Quest did nothing.

“That Quest was on notice of this massive data breach for perhaps a year or more, and yet failed to take any responsible or required action, amounts to an egregious dereliction of duty,” stated firm partner, Jeffrey Norton. “Through this lawsuit, we intend to make sure something like this does not occur again.”

Just a day after this action was filed, on November 17, 2015, NBC news investigative reporter Pei-Sze Cheng ran a story covering the massive data breach. A link to that story is provided here: http://www.nbcnewyork.com/investigations/Medical-Records-Mix-up-Investigation-Doctor-Privacy-351060331.html.

Newman Ferrara maintains a multifaceted practice based in New York City with attorneys specializing in complex commercial and multi-party litigation, securities fraud and shareholder litigation, consumer protection, civil rights, and real estate. For more information, please visit the firm website at www.nfllp.com.

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2 comments to “Quest Diagnostics sued over fax errors breach, but are they really responsible?”

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  1. Anon - November 23, 2015

    I also thought that an individual’s (in this case, Jane Doe) only recourse for a HIPAA violation was to file with OCR/HHS, as HIPAA does not provide a private right of action.

    Are these attorneys trying to scare Quest into a settlement?

    • Dissent - November 23, 2015

      Law firms sue under state laws and allege things like negligence. I would guess that most attorneys are seeking settlements, but I don’t know why Quest would settle unless they changed their fax number and never notified anyone. Even though plaintiffs allege that Quest took no action, we haven’t read Quest’s response yet. For all we know, maybe they did contact some of these places.

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