Paved with good intentions

10

Category : Medical Rants

Keeping Patients’ Details Private, Even From Kin

Ask most any health care worker what they think of HIPAA – and they will develop a pained expression, and the stutter, and then begin telling horror stories.

My most recent involved a patient who came in for a drug related problem. My resident recognized that the patient was a known most wanted criminal. So I called security, who told me that because of HIPAA we could not notify the police. She eventually left the hospital with IV in place to avoid arrest.

This article has a series of anecdotes which are not exaggerations.

As too often happens, a good idea is mangled when Congress sculpts a law.

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Comments (10)

You should blame your local state laws more than HIPAA, and also the interpretation of medical ethics consensus and local HIPAA interpretation.

First there is the issue of medical ethics. The boundary between ethical treatment and crime has always been a troublesome one. The consensus seems to be that medical ethics based privacy should not be used to conceal a crime, assist in a crime, or interfere in its investigation. Whether a doctor should initiate a report that a patient happens to also be a wanted criminal falls into a grey area. Does this threaten the ability of all persons (including criminals) to have access to medical treatment? The ethics consensus is that criminals should have the same access as anyone else. It is unclear how that applies to your particular case.

HIPAA is clear on this issue. It defers to local state law. It specifically permits disclosures related to crimes in progress, crimes observed, evidence of crimes, explicit threats of crimes, and medical records in response to specific targeted legal requests (subject to some limits, such as DNA records). None of those seem to apply to your particular case. For your case HIPAA says: follow the local laws.

See section 164.512(f), it’s about one page long.

Also, HIPAA allows disclosure of names of patients in the hospital as a default. Alerting the authorities to the presence of someone at the hospital is NOT a HIPAA violation and does not even require the deferral to state law mentioned in the above comment.

HIPAA and local laws and policies are selective, aren’t they? Rightfully, medical personal are required by law to report suspected child abuse. No problem there with privacy rights, thank goodness. But if a most-wanted murderer walks into your ER, you can’t call the police? Arghhhh.

Peggy, the selectivity is fairly simple in your examples. The report of suspected child abuse comes under not using medical ethics as a reason to conceal evidence of a crime. Your hypothetical murderer is supposed to be reported if they were observed to commit a crime, are committing a crime, are about to commit one, or are threatening to commit one.

The situation with reporting the presence of accused criminals is more subjective. Will you report the presence of a person accused of failure to pay a library fine, and hence subject to arrest? Will you compare all of your patient admissions against the national warrant databases? Do you think that by doing so you would deter people who might otherwise seek medical treatment? Is that appropriate and ethical?

If you plan only to report selectively, which warrant databases will you search? Which accusations will be worth reporting? If you plan to report only felonies, will you be reporting all instances of homosexual activity in Georgia? Will you be reporting all patients who desire treatment to address substance abuse problems? Those are felonies.

These are not simple issues. I can accept not reporting the presence of accused criminals of any sort, provided they are not in any way threatening anyone. I would report any evidence of a crime that I might happen to find while treating them, e.g., gun wounds.

Your argument is reasonable. Comparing patients’ names against an LEA warrant data base would be absurd. On the other hand if a dangerous felon were recognized by staff, I think there should be a responsibility to call the police.

If a Ted Bundy had strolled into your ER, are you saying it would be ethical to simply treat him and not report his presence to the police? I think there’s a civic and moral responsibility here, to prevent terrible risks to unsuspecting citizens if you don’t report.

In the Bundy case, go ahead and break the law. The HIPAA fine is less than the fine for running a red light, and under those circumstances is unlikely to be enforced. Rather than encumber the rules with excessive detail I prefer simpler laws and a recognition that there will be occasions where the right thing to do is break the rules and take the consequences. I’ve deliberately run red lights for lesser cause.

The HIPAA fine for non-malicious violations is maximum $100/person/violation. Arresting a Bundy would be worth a small fine. On the other hand, if it is a well known dangerous person, why aren’t the visitors and patients calling the police? They are under no obligation to protect his privacy at all.

I wonder if Dr. Mudd is turning in his grave.

Last time I had someone wanted by the police, they waited until the guy was ready to be discharged, then they put the cuffs on him as he walked to the elevator.

That way, the county didn’t get hit with the hospital bill. Apparently, at least in my area, the moment the hospital patient gets cuffed to the bed, the hospital bill is now on the county’s tab.

I mean I’m just sayin’

These situations are giving rise to new legislation, modifying HIPAA to allow hospitals to alert law enforcement without penalty. for example: http://apps.leg.wa.gov/billinfo/Summary.aspx?bill=6106&year=2005

Dr. Sammual Mudd comes to mind. Set the leg of JW Boothe who had a day previous killed A. Lincoln. Dr Mudd failed to notify authorities and ended up in a Fed Pen.

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