By Frank DeLoache

Salisbury Post

A nurse at the Hefner VA Medical Center who has worked with soldiers suffering from post traumatic stress disorder says his co-workers invaded his privacy — and his medical records — when he himself needed help for PTSD.

Henry "Ken" Claiborne is angry because his co-workers talked about his medical records — including the notes of his psychiatrist — with other employees at the VA. The gossiping eventually got back to him.

After he complained to top Hefner VA administrators, Claiborne says three employees who invaded his records were allowed to retire — rather than be fired — with no other disciplinary action.

Claiborne, a Salisbury resident, says Hefner administrators terminated a fourth employee caught in the computer files.

Records released to Claiborne confirm that four employees read his records inappropriately, but any explanation of disciplinary action has been blacked out on the document.

Carol Waters, public affairs officer for the Hefner VA, said Director Carolyn Adams and other officials would not comment on Claiborne's case.

Waters said a Post reporter would have to file a federal Freedom of Information Act request for records about the investigation. Federal officials usually take weeks to respond to requests under the Freedom of Information Act.

In a June 20, 2007, letter, an official with the Office of Inspector General, within the Department of Veterans Affairs, said her agency has investigated and closed the case involving misuse of the Hefner employee's records.

In her letter, Christina A. Lavine, director of the Inspector General's Hotline Division, offered no explanation for the agency's decision.

Claiborne was not satisfied by the explanation and has asked the U.S. Office for Civil Rights to investigate. That office has the responsibility for enforcing the federal law governing patient records.

Claiborne said he is currently on paid leave, his status protected under the federal Whistleblower Act.

Claiborne also is seeking $150,000 in damages, saying the misuse of his records "aggravated (his) existing psychiatric conditions and complicated his therapy."

VA officials refused his claim on Aug. 30, and on Oct. 17, attorneys representing Claiborne sued the federal government in U.S. District Court in Greensboro.

Patient records law

The case offers the public a rare look into the Health Insurance Portability and Accountability Act, commonly known as HIPAA. Congress passed the law in 1996 to protect the privacy of individual patients' medical records.

Anyone who picks up a prescription or visits a doctor's office must sign a release, allowing their pharmacist or doctor to share their medical records with others who need to see them. The law requires volumes of such paperwork because it also carries stiff penalties if a patient's information is released inappropriately.

The law says anyone who reads another person's protected health records and/or tells others about them can be charged with a crime.

If convicted of "wrongful disclosure of individually identifiable health information," a person can face a fine of up to $50,000 and/or up to a year in prison.

"If the offense is committed under false pretenses," the the offender can be fined up to $100,000 and face up to five years in prison.

In practice, however, those types of punishments have not been handed down, according to Reginald Combs, one of the Winston-Salem attorneys representing Claiborne.

The punishment provides "a hammer" that the Office of Civil Rights can use to enforce the law.

Combs, a former president of the Forsyth County Bar Association, said that he's not filed a civil suit like this before. In a fairly recent decision, the N.C. Court of Appeals said the federal medical records law sets a "standard of care" that doctors, hospitals and anyone handling personal medical records must follow.

If the Department of Veterans Affairs was negligent in the way it allowed employees to access other people's medical records, then Claiborne can sue for damages he suffered because of that negligence, Combs said.

Lawyers representing the Department of Veterans Affairs have not responded to Claiborne's suit.

Victims of two wars

Ken Claiborne was drafted in 1971 along with thousands of other Americans who served in the Vietnam War.

Though the Salisbury resident never went to Vietnam, he saw the wounded — some of the very worst wounds — 48 hours after they were pulled from the battlefield. Those who needed more help than military doctors in Vietnam could offer were flown by a Boeing 747 — converted to a 10-bed intensive care unit — to the Madigan Army Medical Center in Tacoma, Wash.

As a licensed practical nurse, Claiborne was a member of one of the medical teams that greeted the wounded on each flight. The patients arrived with limbs missing, bodies horribly burned or mangled.

Claiborne was stationed at Madigan Medical Center, which hospitalized 3,600 patients at that time.

When combat ended in April 1973, Claiborne left the service a month later and went to work at the American Lake VA Hospital in Tacoma, where he worked with Vietnam vets.

Today, Claiborne has 27 years with the Department of Veterans Affairs, having worked at VA facilities in Florida and North Carolina.

And three decades after the war, the memories of the wounded in Vietnam came back to haunt him.

Claiborne was working as a nurse in outpatient clinics operated by the Hefner VA Medical Center in Salisbury and Charlotte.

In 2004, he began seeing soldiers returning from Afghanistan and Iraq. Once again, he treated patients with limbs missing. He saw others with psychological scars, difficult to diagnose just looking at them.

"It was happening again," he says now. "I was seeing the wounded."

According to his lawsuit, he began getting treatment for his feelings in January 2006.

But the feelings worsened. He had nightmares about the wounded. He found he didn't have the strength to get up in the morning to go to work.

"You don't want to see anyone or go anywhere," he said. "You just want to stay in bed. ... I had to admit myself."

He was admitted to the psychiatric unit in Building 4 at the Hefner VA on Brenner Avenue.

He had worked as a psychiatric nurse in that same building, working with doctors trying to help former soldiers with post traumatic stress disorder (PTSD).

Now, he was experiencing the same traumatic stress himself. His psychiatrist told him he was suffering from agoraphobia — he didn't want to be around people — and the deeper problem of "survivor guilt."

He survived Vietnam whole, unlike all those soldiers flown home on those Boeing 747s. The wounded from Iraq and Afghanistan were bringing it all back.

'Parts of my life'

Claiborne was admitted to Ward 4-1 — short for Building 4, first floor — on Nov. 1, 2006, and went home three days later. Then, he went back to his job at the Hefner VA's outpatient clinic.

He didn't know anything was amiss until more than two weeks later when a VA physician called him.

Claiborne and the doctor had worked closely together in Building 4, treating veterans for psychological problems for 10 years, when Claiborne first came to the Salisbury facility. They are friends as well as longtime colleagues, Claiborne says, and the psychiatrist was calling to offer an apology.

He told Claiborne "people on his floor" — Building 4, third floor — "were talking about intimate parts of my life," details that could only come from the notes the psychiatrist took during Claiborne's recent hospitalization.

Claiborne says the doctor admitted he also had gone into the VA's computer system and read Claiborne's records. He told the nurse he realized later that he was wrong and he apologized for doing it.

Claiborne went immediately to Hefner VA officials responsible for computer security, and on Nov. 26, he met with Hefner's information security officer.

That official showed Claiborne a computer printout of people who had opened Claiborne's files. But because his printer had broken, the official said he could produce only a partial list. He asked Claiborne to help identify people he did not think had a legitimate reason for going into his files.

According to a report Claiborne later secured through the federal Freedom of Information Act, the information security officer compiled a list of people who looked at Claiborne's records from Aug. 30 to Nov. 28, 2006. He determined that 152 employees had opened Claiborne's records, most legitimately because they had something to do with Claiborne's treatment.

"Of these, 15 instances of access were determined to be suspect. Seven employees were interviewed. One employee was on extended sick leave and was unable to be interviewed," Hefner VA Director Carolyn Adams wrote in a memo to the Inspector General's office.

"At the conclusion of the interviews, it was determined that four employees had accessed the record seven times without a legitimate need."

Part of Adams' memo has been blacked out, and the readable part does not address disciplinary action taken.

Adams' memo says Claiborne took the partial list "and began confronting some staff members listed on the report." The information security officer told Claiborne to stop and refused to share the rest of the list with him.

Claiborne says he knows VA investigators did not interview everyone who looked at his records. The doctor who first alerted him to the misuse of his records also told Claiborne that investigators never interviewed him.

Claiborne says he met with Adams, the Hefner VA director, and requested a second investigation. Though he says Adams promised to look into his request, she has refused several requests to meet with him since then, he says.

Since then, Claiborne has filed complaints with the VA's Office of Inspector General and the U.S. Office for Civil Rights, which is responsible for enforcing the Health Insurance Portability and Accountability Act.

In an April 24 message to the Inspector General's Hotline Division, Claiborne listed 12 co-workers he believes looked at his records inappropriately. That list included the four identified during the initial investigation.

On June 20, Christina A. Lavine, director of the Hotline Division of the Inspector General's office, wrote Claiborne to say the Inspector General's office had closed its investigation. To get the results of the investigation, Lavine wrote, Claiborne had to file a request through the Freedom of Information Act.

On July 26, Edward Lewandowski, of the Region III Office of Civil Rights, wrote Claiborne, asking if he wanted to pursue a complaint or was satisfied with disciplinary action the Hefner VA took against those who had violated the federal privacy rule.

Claiborne said he is not satisfied, and he is now awaiting word from the U.S. Office of Civil Rights.

In Claiborne's suit against the federal government, his lawyers say, "The United States had a duty to protect the confidentiality of (Claiborne's) medical records. By the Salisbury VA (Medical Center) employees ... obtaining access to (his) medical information without consent or legitimate need, and by the VA's failure to develop ... enterprise-wide privacy policies and procedures to ensure adequate protection of such information, the United States breached the appropriate standard of care" established by the federal medical records law.

Contact Frank DeLoache at 704-797-4245 or fdeloache@salisburypost.com.