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Real-Life Board Complaint: Why I Had to Break HIPAA

Mental healthcare professional learning they are being named in a licensing board complaint

What if, one day in the course of duty, you’re forced to make one of the most difficult choices: comply with HIPAA, even if it means placing a patient and others at risk — or protect your patient and others, even if it means exposing yourself to a board complaint? This is when doing the right thing can feel wrong, and even punishing.

For one mental health nurse practitioner – and Berxi Medical Malpractice Insurance policy holder – that was a painful reality. Below, she shares her story, including how a Berxi claims manager helped her through the entire ordeal.

The Drugs & Lies that Created Conflict

The NP at the heart of our story is a highly trained, educated, and experienced mental health advocate. She prides herself on offering trusted, compassionate care to her patients while always upholding the American Counseling Association’s Code of Ethics guidelines, including patient confidentiality and HIPAA laws.

But when one new patient came to see her, the lines between patient trust and safety quickly became blurred. This soon left her with a challenging ethical and career dilemma.

The patient, a commercial airline pilot, informed the NP that they had been wrestling with anxiety and depression, brought on by the COVID epidemic. The pilot shared that the condition had never been treated but that they had been self-medicating with Xanax provided by a friend.

Concerned about the addictive nature of Xanax, the NP told the pilot to stop flying immediately and offered to prescribe a more appropriate medication. However, when she checked the Prescription Drug Monitoring Program (PDMP) database to see what other drugs her patient was taking, she discovered a long prescription history, including a very large supply of Xanax and Adderall that was recently picked up.

Surprised that their history of medications could be accessed, the pilot made a shocking admission that they would “often take 5 to 6 Xanax while flying and never had a problem.”

The Decision to Break HIPAA

Worried about the safety concerns of the pilot flying while under the influence of such strong medications (and the lives they were putting at risk), the NP knew she had to break confidentiality/HIPAA and filed a report.

What wasn’t as clear, however, was the formal process she needed to follow.

After a few unsuccessful attempts with the Board of Nursing, she was encouraged to contact the Federal Aviation Administration (FAA), which responded immediately. The area’s medical director assured her she was doing the right thing and helped her file a report.

Within a week of the FAA filing, she received an email from the pilot threatening to sue her for “violating patient/provider confidentiality” if she took any further action.

Upset and scared at the prospect of having her livelihood and career threatened, she was still adamant in her decision to move forward to ensure the safety of others. “Several years ago, there was a pilot suffering from depression who crashed a plane into the French Alps with a planeload of passengers,” she adds. “I would rather have it reported and deal with the consequences than to see so many people lose their lives.”

Despite everything at stake, the NP crafted a response back to the pilot’s threat. “I told him that I had malpractice insurance and to feel free to contact my insurance company.”

How Berxi Helped With the Licensing Board Complaint

Weeks later, the NP received a call from the Board of Nursing informing her that a complaint had been filed against her for professional misconduct.

Licensing board complaints can be made against any licensed healthcare provider for alleged violations of the standard of care or misconduct or unethical behavior. If, after evaluating the complaint, the licensing board rules against a healthcare professional, serious actions can be taken – from monetary fines to loss of their license to practice.

With news of the board complaint, she immediately called Berxi, part of Berkshire Hathaway Specialty Insurance, and the response from Claims Examiner Ed Hoskins quickly put her at ease.

“He was amazing. He told me that whatever happens, I did the right thing and that Berxi will back me up,” she reflects.

“I could tell how much she cared about her patients,” says Ed. “I told her she was a hero for coming forward.”

The NP’s malpractice policy covered up to $25,000 for board complaint legal defense per policy period. Ed connected the NP with an attorney and provided ongoing support to make sure she was getting the help, guidance, and updates she needed.

How the Board Proceedings Worked

The board complaint had been assigned to an investigator. So the Berxi-appointed attorney worked with the NP to craft a response to the complaint filed against her. The board conducted its investigation and determined that there was no professional misconduct on the part of the NP.

Ecstatic and relieved the board ruled in her favor, the NP still felt remorse for how things turned out for the pilot, who eventually lost their license. “I never wanted [them] to lose [their] job or license,” she shares. “But I had a duty to protect the safety of others.”

But the case is not over completely. The pilot has also threatened to file a medical malpractice suit against the NP (based on the applicable state’s statute of limitations, the pilot has more time to file such a suit). And while our NP is sure she’s up to such a fight, she is also grateful that her medical malpractice insurance will come in handy again if that day ever comes.

A Powerful Lesson for Other Healthcare Providers

The NP learned a lot from this ordeal, including the pressing need for a coordinated system for reporting incidents like this one in the airline industry. “I couldn’t believe [they] had been allowed to fly with all of those medications prescribed,” she admitted, thinking that a checks and balances system should work better for certain professions.

And though the licensing complaint was incredibly stressful, she hopes that other mental health professionals will take action if they face a similar situation, despite the risk of a malpractice claim or licensing board review. “They have to come forward because we don’t know how many other pilots might be doing the same thing,” she shares. “According to this pilot, there are a lot of them.”

Lastly, she encourages professionals to have malpractice insurance. “A [colleague] once told me that it’s not the cases you worry about, but the ones you don’t that can come back to hurt you.”

How Berxi Takes Care of Customers

Licensing board complaints are a key area in which having your own medical malpractice insurance can make all the difference. The main reason: Many employer-provided policies do not assist with licensing board issues.

In the case of this customer, if she hadn’t had malpractice insurance, she would have had to retain her own lawyer to help craft her response to the accusation. And now with the looming threat of a malpractice claim, more out-of-pocket legal expenses could be on the horizon. Plus, canceling appointments due to legal depositions would result in lost income. And a Berxi policy would reimburse for those lost wages.

Hoskins adds: "We've had great success with board complaints [at Berxi]. Our customers are really professional and care about their patients. This NP was worried, but we knew she did the right thing."

Nothing shows the real value of professional liability insurance like being faced with a claim or hearing the real medical malpractice stories of others. At Berxi, we hope these stories can help provide you with a better understanding of what insurance covers and how our team helps to support you. It can be hard to grasp what you’re paying for when you buy a policy, but when things happen, the Berxi team is there to give you the confidence to keep moving toward what’s possible.

If you want similar peace of mind, consider buying your own policy. Start your quote here and see how easy and fast it is to protect your possible.

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Last updated on Oct 20, 2023.

Originally published on Oct 19, 2023.

The views expressed in this article are those of the author and do not necessarily reflect those of Berxi™ or Berkshire Hathaway Specialty Insurance Company. This article (subject to change without notice) is for informational purposes only, and does not constitute professional advice.

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