US Pharm. 2008;33(4):67-70.

Many pharmacists voluntarily help educate the next generation of pharmacists who serve as pharmacy interns (or externs or similar titles) in retail and hospital settings. All colleges and schools of pharmacy in the United States are required by accreditation bodies to provide on-the-job clinical training in various locations and through a number of different rotations. Many institutions and community pharmacies have agreements with local colleges for the placement of interns and agree to train the students in the standards of the profession.

When a student is placed at one of these sites, a new dichotomy of rights and responsibilities is created. First, the student must adhere to all policies and procedures of the university or college where enrolled. Second, the student must also follow the regulations established by the clinical training sites. Violation of either set of rules can result in disciplinary action. In a worst-case scenario, a student may be asked to leave the pharmacy or be barred from returning. This may or may not have a negative effect on the student's academic status.

Whenever a preceptor believes that a student has committed an infraction, policies and procedures must be followed to ensure that the adverse actions taken against the student do not violate the student's rights. A recent case will help explain the parameters of the rights and duties at stake.1

Facts of the Case
A pharmacy student in the last year of his education was placed at a hospital affiliated with a pharmacy school at a state-funded public university. The student was assigned to this facility as part of a specific required course for which the student would earn academic credit if the rotation was completed successfully. This became a serious issue because the student had failed this rotation during an earlier assignment. The pharmacy school has an academic regulation that requires dismissal of a student from the curriculum if the student fails the same class twice.2

During the morning of July 28, 2006, while performing his duties in the hospital, the student took a picture with his cell phone. The content of that photo was in dispute. The student stated that he was taking the picture of a classmate and that "students had long been encouraged by the university to take pictures while on rotations in order to memorialize their experiences." However, a nurse, who saw the student take the picture, believed he had photographed a patient who was being attended to by some medical staff. The nurse was concerned that taking a picture of a patient violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA).3

The U.S. Department of Health and Human Services (HHS) issued a "Privacy Rule" to implement HIPAA mandates. The Privacy Rule is officially called the Standards for Privacy of Individually Identifiable Health Information, and it established a set of national standards for the protection of certain health information.4 According to HHS, the Privacy Rule standards address the use and disclosure of individuals' health information--called "protected health information" by organizations subject to the Privacy Rule (known as "covered entities")--as well as standards for individuals' privacy rights to understand and control how their health information is used. HHS says that one of the major goals of these regulations is to assure that individuals' health information is properly protected, while allowing the flow of health information needed to provide and promote high quality health care and to protect the public's health and well-being. Full-face photographic images and any comparable images are considered identifiers of an individual and are covered as protected health information.5

The nurse requested that the student immediately delete the photo from his cell phone. He complied on the spot. Because of this action, there was no evidence of what actually appeared in the photograph. The nurse also reported the incident to two of the student's supervisors at the hospital. During a court hearing on a motion related to the student's lawsuit, the student again claimed that the picture was of his classmate but acknowledged there were people in the background who were assembled around a patient. He steadfastly claimed that the patient was not visible in the picture and that the patient could not possibly be identified.

After learning of the incident, the two pharmacy supervisors immediately discussed it with the student. According to the student, during this impromptu meeting, one or both of the supervisors asked him to make a written apology to the nurse and to read some HIPAA literature. Later in the afternoon, the two supervisors and the student met with two coordinators of the university's pharmacy program. On the representation of one of the school's faculty, the student left the meeting believing the incident was resolved.

On July 31, when next scheduled, the student returned to the hospital, found the nurse, and handed her his written apology. Approximately two hours later, he met again with the two hospital pharmacy supervisors and was told that because of the photo incident he was being relieved from his duties and removed from the rotation. The next day he was informed by one of the pharmacy faculty coordinators that he would receive a failing grade for the course. Because he had failed the course associated with this rotation once before, he was immediately suspended from the pharmacy curriculum. He appealed that decision to the university, but his appeal was denied. He claimed that while the appeal procedure was taking place, a pharmacy school officer stated that the school would offer him a letter of good standing, which would have allowed him to finish his degree at another university. That offer was rescinded and, as a result, the student has not been able to complete his education or receive his pharmacy degree.

Lawsuit
The student sued the hospital, the university, several pharmacy school faculty involved in his termination, and the two hospital supervisors who suspended him from finishing the rotation. The student claimed that neither the university nor the hospital ever communicated a policy prohibiting the taking of photographs in the hospital. He also maintained that no such policy exists. While he acknowledged that taking "full face images" of a patient indeed violates HIPAA, he denied that his picture had any identifying characteristics of a patient. He also claimed that the letter of apology he wrote at the behest of the hospital supervisors was now being used by the defendants as an admission of wrongdoing. He complained that his dismissal from the hospital rotation did not comply with any established university procedures and that he was dismissed from the program because the defendants simply did not like him. He also maintained that the defendants acted in bad faith. His lawsuit alleged several theories of liability under state and federal laws, including civil rights and due process violations, promissory estoppel, and fraud.

After the lawsuit was filed but before any discovery took place, the two hospital supervisors asked the federal district court judge to dismiss all claims against them.6 They claimed that the complaint against them was insufficient to sustain any potential liability. Motions to dismiss are rarely granted in federal courts and will be permitted "only if there is no set of facts that could be proven consistent with the allegations in the complaint that would entitle the plaintiff to relief."7 In other word, this motion is designed to test whether the facts pled in the complaint could result in liability under the alleged theories of law.

Civil Rights Claims: The complaint alleged violations of procedural due process and equal protection. The statute, 42 USC ß1983, "provides for a private civil action to redress constitutional deprivations visited upon a plaintiff by a defendant clothed in the authority of the state," or, as often stated, "acting under the color of state law."8 The defendants claimed that they are not "state actors" because they are employed by a nonprofit hospital organization that has no connection with the publicly funded university other than an agreement to train pharmacy students. However, private acts or conduct may incur liability under the statute if the individual is a "willful participant in joint action with the State or its agents." The judge ruled that because the two supervisors had sufficient interaction with the university employees that led to the student's expulsion from the pharmacy program, it could be determined they were, in fact, acting for the state.

Due Process Claims: The student contended that he was denied procedural due process when he was removed from the university's pharmacy program without "some notice and an opportunity to be heard." The defendants argued that he was not entitled to any due process or that if he was, that what he received was sufficient. It is well settled that students who are dismissed from academic programs do not have as much protection under ß1983 as do, for example, employees. This policy exists because the courts do not want to substitute judicial opinion for academic decisions. The U.S. Supreme Court has observed, "The courts must accept, as consistent with due process, an academic decision that is not beyond the pale of reasoned academic decision-making when viewed against the background of the student's entire career at the university."9 However, students do have a "liberty" interest in higher education. This is akin to a "property right" in tax-supported education.

Accordingly, the judge determined that the student had a protected liberty interest in his academic program of learning. As such, he was entitled to some degree of procedural due process. Taken together, his allegations that he was dismissed for conduct that he had no reason to believe would result in his ouster from the program, that his dismissal was arbitrary and capricious, that he was misled with regard to the apology letter that the defendants had him write, and because the university construed the letter as an admission of wrongdoing, all supported his theory that he was dismissed without an opportunity to be heard and in violation of his due process rights. The defendants' argument that the student's dismissal from the program was rational and well reasoned did not convince the judge.

Equal Protection Claims: The student claimed he was treated differently than other similarly situated students and that he was impermissibly singled out for sanctions for the photo-taking incident solely out of the irrational prejudice of the defendants. This claim is premised on the theory that the defendants acted irrationally, with ill-will and out of personal vindictiveness. While the judge expressed doubts that the student could prevail on this theory of liability, he did not want to dismiss it before the student could take some discovery on the issues

Qualified Immunity: The defendants argued that if they are found to be "state actors," i.e., acting on behalf of the state, they are entitled to qualified immunity from the student's ß1983 claims. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation."10 This concept is intended to shield "public officials, acting within the scope of their authority, from civil liability for performing discretionary functions insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known."11 The U.S. Supreme Court has characterized the doctrine as protecting "all but the plainly incompetent or those who knowingly violate the law."12 In order to determine if the qualified immunity doctrine applies, a court must first determine whether the plaintiff has alleged a constitutional violation and, if so, whether the violation is of a clearly established constitutional right. Once the court finds a violation of a clearly established right, a defendant is entitled to immunity if his conduct was objectively reasonable. In this case, because there is an open issue as to whether or not the defendants are "state actors," the judge determined that it would be premature to dismiss this count at this stage of the proceedings. After discovery, the judge would determine if the defendants would be deemed to be acting under the color of law and whether they would be entitled to qualified immunity from the claims of the student.

Promissory Estoppel: The student asserted in his complaint that the defendants promised him the entire matter would be resolved if he wrote the apology letter to the nurse. He did what was asked, but the defendants allegedly took the letter and turned it in to the university as evidence to support his dismissal from the pharmacy program. The judge noted that promissory estoppel is an available cause of action for the one who was promised something and then acts to his detriment in reasonable reliance on an otherwise unenforceable promise. The elements of a promissory estoppel claim are: 1) a promise, 2) foreseeability of reliance thereon by the promisor, and 3) substantial reliance by the promisee to his detriment. The judge noted that the student's complaint on this issue was "highly detailed and relates with specificity the events leading to and following his dismissal from the University's pharmacy program.

Fraud: The student also claimed that when the defendants told him that the matter would end with the apology letter, but then took the matter further, they committed fraud. The elements of a fraud claim are: 1) that a material representation was made, 2) that it was false, 3) that the speaker knew it was false when made or that the speaker made it recklessly without any knowledge of the truth and as a positive assertion, 4) that he made it with the intention that it be acted upon by the other party, 5) that the party acted in reliance upon it, and 6) damage. In order to sustain a fraud claim, the plaintiff must allege "the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what [that person] obtained thereby."13 The judge read the complaint as containing sufficient facts alleging the who, what, when, where, and how of the alleged fraud. Accordingly, the judge ruled that the defendants' argument that the student "has merely provided a formulaic recitation of the elements of fraud is frivolous and wholly unsupported by even a cursory reading of the complaint.

Analysis
The judge in this case seemed peeved with the assertion of the defendants that no matter what the facts are they could not possibly be liable for their role in removing the student from the hospital rotation and his ultimate termination from the pharmacy program. Equally irritating were the claims that the student was not entitled to Constitutional due process or, in the alternative, that what they did satisfied the due process requirements. The hardest burden for the defendants was to explain why the student was expelled for taking a picture that no one will ever see. In some ways the nurse who told the student to delete the photograph from his cell phone may have helped the student's case by instructing him to destroy the very evidence that could have supported the HIPAA violations claim. The defendants also hurt their chances in court by making the student write an apology and then using that as an admitted confession of wrongdoing. Overreaching is never a good trial strategy, because it makes the defendants look smug or conceited at how smart they were to implicate the student.

The element missing here is the nearly complete lack of notice that charges would be brought against the student and that he was not given a meaningful opportunity by either the hospital or the university to defend himself. One day he is a student and the next day he is not. What happened? He took a picture. He took a picture of what? Of a classmate or of some medical staff attending to a patient or maybe of nothing at all. It does seem like a bit of a knee-jerk reaction to conclude a HIPAA violation occurred because a picture was taken near a patient. HIPAA, of course, does not go so far as to justify dismissing a student merely because he took a picture. HIPAA only says that you cannot take a full-face photograph or otherwise identify protected information.

The lesson to be learned is that preceptors need to respect the rights of their interns as something important and vital. Make sure interns know what is right and what is wrong and what procedures will be used if a policy is violated. It is always best to write the policies and procedures down and keep a paper trail showing how you followed each step. Students may not have a great many rights, but they certainly have the right to pursue their education within the boundaries of behavior outlined for them in advance. By the way, thank you for taking the time and interest to train the next wave of pharmacists

REFERENCES

1. Strango v. Hammond, Slip Op No H-07-2902 (February 21, 2008), USDC SD Texas, 2008 U.S. Dist. Lexis 12189.

2. This is a fairly uniform regulation shared by many universities.

3. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public. Law 104-191, was enacted on August 21, 1996.

4. U.S. Department of Health and Human Services. Summary of the HIPAA Privacy Rule. Revised May 2003. www.hhs.gov/ocr/privacysummary.pdf. Accessed March 13, 2008.

5. 45 CFR ß164.502(d)(2), 164.514(a) and (b).

6. The Opinion only addresses the potential liability of the two hospital supervisors and no other defendants.

7. Power Entertainment v. NFL Props, 151 F3d 247, 249 (5th Cir. 1998).

8. This sections states, in relevant part, "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

9. Regents of University of Michigan v. Ewing, 474 U.S. 214, 227, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1985).

10. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).

11. Los Angeles v. Heller, 475 U.S. 796, 800, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1982).

12. Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).

13. Tuchman v. DSC Communications Corp, 14 F3d 1061, 1068 (5th Cir. 1994).

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