2009 California Civil Code - Section 56.35-56.37 :: Chapter 7. Violations

CIVIL CODE
SECTION 56.35-56.37

56.35.  In addition to any other remedies available at law, a
patient whose medical information has been used or disclosed in
violation of Section 56.10 or 56.104 or 56.20 or subdivision (a) of
Section 56.26 and who has sustained economic loss or personal injury
therefrom may recover compensatory damages, punitive damages not to
exceed three thousand dollars ($3,000), attorneys' fees not to exceed
one thousand dollars ($1,000), and the costs of litigation.

56.36.  (a) Any violation of the provisions of this part that
results in economic loss or personal injury to a patient is
punishable as a misdemeanor.
   (b) 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 one thousand dollars ($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.
   (c) (1) In addition, any person or entity that negligently
discloses medical information in violation of the provisions of this
part shall also be liable, irrespective of the amount of damages
suffered by the patient as a result of that violation, for an
administrative fine or civil penalty not to exceed two thousand five
hundred dollars ($2,500) per violation.
   (2) (A) Any person or entity, other than a licensed health care
professional, who knowingly and willfully obtains, discloses, or uses
medical information in violation of this part shall be liable for an
administrative fine or civil penalty not to exceed twenty-five
thousand dollars ($25,000) per violation.
   (B) Any licensed health care professional, who knowingly and
willfully obtains, discloses, or uses medical information in
violation of this part shall be liable on a first violation, for an
administrative fine or civil penalty not to exceed two thousand five
hundred dollars ($2,500) per violation, or on a second violation for
an administrative fine or civil penalty not to exceed ten thousand
dollars ($10,000) per violation, or on a third and subsequent
violation for an administrative fine or civil penalty not to exceed
twenty-five thousand dollars ($25,000) per violation. Nothing in this
subdivision shall be construed to limit the liability of a health
care service plan, a contractor, or a provider of health care that is
not a licensed health care professional for any violation of this
part.
   (3) (A) Any person or entity, other than a licensed health care
professional, who knowingly or willfully obtains or uses medical
information in violation of this part for the purpose of financial
gain shall be liable for an administrative fine or civil penalty not
to exceed two hundred fifty thousand dollars ($250,000) per violation
and shall also be subject to disgorgement of any proceeds or other
consideration obtained as a result of the violation.
   (B) Any licensed health care professional, who knowingly and
willfully obtains, discloses, or uses medical information in
violation of this part for financial gain shall be liable on a first
violation, for an administrative fine or civil penalty not to exceed
five thousand dollars ($5,000) per violation, or on a second
violation for an administrative fine or civil penalty not to exceed
twenty-five thousand dollars ($25,000) per violation, or on a third
and subsequent violation for an administrative fine or civil penalty
not to exceed two hundred fifty thousand dollars ($250,000) per
violation and shall also be subject to disgorgement of any proceeds
or other consideration obtained as a result of the violation. Nothing
in this subdivision shall be construed to limit the liability of a
health care service plan, a contractor, or a provider of health care
that is not a licensed health care professional for any violation of
this part.
   (4) Nothing in this subdivision shall be construed as authorizing
an administrative fine or civil penalty under both paragraphs (2) and
(3) for the same violation.
   (5) Any person or entity who is not permitted to receive medical
information pursuant to this part and who knowingly and willfully
obtains, discloses, or uses medical information without written
authorization from the patient shall be liable for a civil penalty
not to exceed two hundred fifty thousand dollars ($250,000) per
violation.
   (d) In assessing the amount of an administrative fine or civil
penalty pursuant to subdivision (c), the Office of Health Information
Integrity, licensing agency, or certifying board or court shall
consider any one or more of the relevant circumstances presented by
any of the parties to the case including, but not limited to, the
following:
   (1) Whether the defendant has made a reasonable, good faith
attempt to comply with this part.
   (2) The nature and seriousness of the misconduct.
   (3) The harm to the patient, enrollee, or subscriber.
   (4) The number of violations.
   (5) The persistence of the misconduct.
   (6) The length of time over which the misconduct occurred.
   (7) The willfulness of the defendant's misconduct.
   (8) The defendant's assets, liabilities, and net worth.
   (e) (1) The civil penalty pursuant to subdivision (c) shall be
assessed and recovered in a civil action brought in the name of the
people of the State of California in any court of competent
jurisdiction by any of the following:
   (A) The Attorney General.
   (B) Any district attorney.
   (C) Any county counsel authorized by agreement with the district
attorney in actions involving violation of a county ordinance.
   (D) Any city attorney of a city.
   (E) Any city attorney of a city and county having a population in
excess of 750,000, with the consent of the district attorney.
   (F) A city prosecutor in any city having a full-time city
prosecutor or, with the consent of the district attorney, by a city
attorney in any city and county.
   (G) The Director of the Office of Health Information Integrity may
recommend that any person described in subparagraphs (A) to (F),
inclusive, bring a civil action under this section.
   (2) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund. If
the action is brought by a district attorney or county counsel, the
penalty collected shall be paid to the treasurer of the county in
which the judgment was entered. Except as provided in paragraph (3),
if the action is brought by a city attorney or city prosecutor,
one-half of the penalty collected shall be paid to the treasurer of
the city in which the judgment was entered and one-half to the
treasurer of the county in which the judgment was entered.
   (3) If the action is brought by a city attorney of a city and
county, the entire amount of the penalty collected shall be paid to
the treasurer of the city and county in which the judgment was
entered.
   (4) Nothing in this section shall be construed as authorizing both
an administrative fine and civil penalty for the same violation.
   (5) Imposition of a fine or penalty provided for in this section
shall not preclude imposition of any other sanctions or remedies
authorized by law.
   (6) Administrative fines or penalties issued pursuant to Section
1280.15 of the Health and Safety Code shall offset any other
administrative fine or civil penalty imposed under this section for
the same violation.
   (f) For purposes of this section, "knowing" and "willful" shall
have the same meanings as in Section 7 of the Penal Code.
   (g) No person who discloses protected medical information in
accordance with the provisions of this part shall be subject to the
penalty provisions of this part.
   (h) Paragraph (6) of subdivision (e) shall only become operative
if Senate Bill 541 of the 2007-08 Regular Session is enacted and
becomes effective on or before January 1, 2009.

56.37.  (a) No provider of health care, health care service plan, or
contractor may require a patient, as a condition of receiving health
care services, to sign an authorization, release, consent, or waiver
that would permit the disclosure of medical information that
otherwise may not be disclosed under Section 56.10 or any other
provision of law. However, a health care service plan or disability
insurer may require relevant enrollee or subscriber medical
information as a condition of the medical underwriting process,
provided that Sections 1374.7 and 1389.1 of the Health and Safety
Code are strictly observed.
   (b) Any waiver by a patient of the provisions of this part, except
as authorized by Section 56.11 or 56.21 or subdivision (b) of
Section 56.26, shall be deemed contrary to public policy and shall be
unenforceable.


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