I can understand why a Medical Board investigates a practice for allegations related to patient safety. I get it when the Board responds to concerns a doctor may be taking advantage of patients sexually. The main purpose of the Medical Board is to protect the public.
What I don’t understand is when a Medical Board stretches its mandate in “protecting the public.”
Case in point, Donovan Dave Dixon, MD.
Remember the movie War of the Roses. Kathleen Turner and Michael Douglas play married characters. They hated each other. But, neither wanted to part with their opulent house. So, they stay put. No one moved. They continue to spew hate and back it up with hateful actions.
Recently, a Medical Justice member said they cared for a patient who died. The patient was estranged from his wife. He explicitly stated he did not want his estranged wife to have access to his medical records.
HIPAA is clear, though.
The person who can access a patient’s full record after death is the estate’s executor. The executor steps into the shoes of the deceased. Further, HIPAA applies to dead patients for 50 years.
One exception to a dogmatic interpretation of HIPAA and deceased.
The Privacy Rule permits a covered entity to disclose protected health information about a decedent to a family member, or other person who was involved in the individual’s health care or payment for care prior to the individual’s death, unless doing so is inconsistent with any prior expressed preference of the deceased individual that is known to the covered entity. This may include, depending on the circumstances, disclosures to spouses, parents, children, domestic partners, other relatives, or friends of the decedent, provided the information disclosed is limited to that which is relevant to the person’s involvement in the decedent’s care or payment for care.
So, yes, one can talk to the family about how a patient died unless doing so violates the express wishes of the patient.
But, here, the patient’s estranged wife was the executor. And now she wanted the records. And the deceased had stated she was not to receive the records.
What to do?
Just give her the records under the assumption if this issue was that important to the patient, he would have changed his will and named a different executor? Deny the records and make her obtain a court order?
There is no perfect answer, but, it likely is the former. One is legally obligated to give records to the personal representative/executor of the estate.
Who knows? Maybe the couple made up moments before his death. Maybe the patient only cared about not disclosing his medical records to his estranged wife while he was alive. Maybe he was negligent in revising his will.
Doesn’t matter. The doctor’s office is left to follow the direction of the estate’s executor.
Illegal immigration is now the buzz of the political ball. Candidates are talking about building a wall, rounding up and deporting undocumented immigrants, and its economic ramifications.
What happens when undocumented workers are injured and need long term medical care? What must hospitals do? What do hospitals do?
Scenario #1:
Some doctors believe, incorrectly, that if a patient has already disclosed protected health information on the Internet, his doctor can “correct” the record online. In other words, if a patient slams a doctor online, and attaches his name or picture to the review, many doctors believe the toothpaste is out of the tube, and the doctor can tell their side of the story. After all, it was the patient who spilled the beans. The doctor is just making sure the public record is accurate.
Unfortunately, the doctor is not free to respond, if doing so would disclose any protected health information. This includes even acknowledging there is/was a doctor-patient relationship.
The doctor can respond and disclose protected health information if (a) the patient authorizes such a release in writing; or (b) if the disclosure falls under an explicit exception where the patient’s authorization is not required. Unless one of these conditions is met, responding online is risky. If a patient has slammed the doctor online, it is unlikely he will authorize a retort. And most exceptions to requiring the patient’s signed authorization are not triggered by the standard rant.
Scenario #2:
Doctors ARE allowed to disclose protected health information to defend themselves against a lawsuit. It’s only fair. The medical record cannot serve as both a sword and a shield. A patient cannot simultaneously sue a doctor alleging he violated the standard of care and then cry foul when he defends using the medical record.
Here’s one tricky situation.
Occasionally, one treating doctor will cast aspersions on a prior treating doctor. This may rile the patient up. This may lead to the first doctor being sued. The first doctor can use the medical record to defend himself.
What about the second doctor? Can he report on the litigation on his blog? After all, litigation IS a public record.
The short answer is no.
If both doctors have treated this patient, they are covered by HIPAA. The first doctor, the one being sued, can defend against allegations and disclose protected health information.
But, the second doctor, who is not a party to the litigation, is foreclosed from disclosing protected health information without the patient’s authorization. Note: an independent third party who never took care of this patient, could report on the case, because he is not disclosing any protected health information for one of his patients. In this role, the independent third party is more like a journalist.
Tricky stuff. Don’t kill the messenger.
A few of our members are psychiatrists. Most are not. On rare occasion a surgeon will get a call or email from a patient suggesting they are considering suicide. Or they have a detailed plan to take their life. Or they’ve posted this nugget of info on Facebook or a doctor review site and you get an email from the site.
The conundrum is how a non-psychiatrist, now aware of your patient’s thoughts, can determine whether your patient is an imminent danger to himself or others.
Physicians regularly renew their medical licenses. A typical question on the application reads:
Since you last renewed have you become aware of any medical condition that impairs or limits, or could possibly impair or limit, your ability to practice medicine safely? (If you are an anonymous participant in the Physician Health Program and in compliance with your contract, you do not need to list any medical conditions related to that contract).
Medico-legal challenge?
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