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An old joke says that the best way to keep a secret is to tell it to only one person, and that person should be dead.

 

All kidding aside, the greater the number of people who handle information, the more likely that confidentiality will be breached. That’s why physicians take histories and examine patients behind closed doors, in addition to employing numerous measures to safeguard their medical records.

The doctor-patient relationship is sacred. With limited exceptions, everything the patient says to the doctor must be treated as confidential and can’t be disclosed without the patient’s explicit consent. The Health Insurance Portability & Accountability Act (HIPAA) mandates that what happens in the exam room stays in the exam room.

 

This principle is founded in common law, plus state and federal statutes. And there’s a strong rationale for this: If patients fear that their deepest secrets and concerns will be disclosed, they may not be candid with their doctors, who need patients to feel comfortable if they’re to skillfully diagnose and treat them.

Fortunately, most doctors build a significant level of trust with their patients, which allows them to examine them alone, one on one. Some physicians simply do this routinely, being careful to respect the patient’s wishes and dignity, while others do so after giving patients the option to have a chaperone present, as recommended by the American Medical Association. The chaperone is usually a member of the doctor’s staff, but a friend or relative may step in if the patient prefers and the physician agrees to it.

 

But what happens when a patient doesn’t request a chaperone and later alleges that a doctor behaved inappropriately—or even illegally—when the door was closed? Does privacy suddenly switch from being a shield to becoming a sword? If there are no witnesses, how can a doctor defend against baseless allegations? Let’s take a look.

 

A Routine Exam Gone Wrong

 

To see just how easy it is for a doctor to find himself accused of inappropriate behavior by a patient during a routine encounter, consider what happened to this male psychiatrist.

 

The doctor was treating a woman with long-standing schizophrenia, which had been reasonably well-controlled with antipsychotic medication. During one follow-up visit, however, the patient complained of an unrelated ailment: lower back pain. The doctor offered to examine her, fully clothed, in a spare room that was sometimes used as an exam room. In trying to better understand the patient’s symptoms and whether she needed treatment or referral to a specialist, he palpated her lumbar region through her clothes.

 

The door to the room was closed. No chaperone was present.

 

The doctor noted mild spasm and thought it represented a mild lumbar sprain. He advised the patient to rest and follow up with her primary care physician should her symptoms not abate.

 

Several days later, the psychiatrist received a visit from the local police. The patient had filed a report claiming that the doctor had asked her to remove her clothes and then inserted “something” into her rectum while he examined her. The patient alleged that she was sexually violated. If true, this was a criminal offense not covered by bread-and-butter professional liability policies.

 

Unfortunately, the doctor had no witness in the exam room to corroborate his obvious defense: that the patient had never been asked to disrobe.

 

Still, two facts helped this doctor. First, the patient had a long-standing diagnosis of schizophrenia, and she was taking medication for the condition. In defending against a criminal charge, HIPAA allows a doctor to disclose limited protected health information. Rightly or wrongly, the police took this information into account in determining which side was more credible.

 

Second, and more important, as the patient left the office, she had engaged in a calm, matter-of-fact discussion with the doctor’s receptionist about gluten-free recipes. The two women continued to chat as the receptionist searched the calendar for a date for the patient’s next visit.

 

Was this type of discussion the behavior expected from a patient who had just been sexually assaulted? The police concluded that it was not. They continued their investigation a bit longer, then closed the case.
The Strength of a Witness

 

In another case, a dentist performed routine repair of a female patient’s crown. The following day, the patient called the office complaining that the doctor’s elbow was on her breast for the entire procedure, and she believed he was rubbing it in a sexually provocative way. She wanted her money back.

 

In this instance, however, a female assistant had been in the room, passing instruments to the dentist and keeping the field dry. She witnessed the entire procedure. There may have been times that the dentist’s elbow did in fact inadvertently touch the patient’s breast. But it was only because his arm needed to be so positioned to adeptly complete the procedure.

 

The dentist called the patient, explained his story, and reminded her that the assistant had been in the room the entire time. The patient accepted the dentist’s reasoning and dropped her demand.

 

 

Clinical photos. A plastic surgeon routinely took before-and-after photos of his patients. He had standardized the protocol for taking such pictures: same camera, lighting, room, and technician every time.

 

However, one day, the technician was unavailable, and the standard camera wasn’t working. The doctor led the patient into a private room, closed the door, and, with his smartphone, took several post-op pictures of her healing lower back wound—he had performed scar revision surgery. The surgeon securely transferred the pictures from his encrypted storage device to the electronic medical record. He then wiped the storage medium clean to comply with state and federal privacy laws.

 

The following day, the patient called the office to complain. She alleged that during the photo session, she had turned around and believed that she saw the doctor snapping pictures of her buttocks. In reality, the doctor was working to get the autofocus right and was aiming the phone in different spots to activate the system.

 

Still, the incident happened behind closed doors, and no witness was present. It was the doctor’s word against the patient’s. Furthermore, because the doctor had scrupulously followed state and federal privacy laws, he had erased the photos from his phone—which would have easily corroborated his defense.

 

Fortunately, the patient accepted this explanation and nothing more came of it.

 

The Case for Defensive Medicine

 

The doctors in these situations were lucky. No doubt, physicians face the continual challenge of providing patients with a comfortable environment in which to disclose private information. Many patients don’t want a third party in the room, whether it’s a scribe or a chaperone. Furthermore, most practices are already understaffed, so asking an assistant to serve as a witness often isn’t cost-effective. And leaving the exam room door open, to allow staff passing by to serve as incidental witnesses, is probably the worst option.

 

In addition, as we explained in a recent Medscape article (http://www.medscape.com/viewarticle/849568), many cultures have differing standards when it comes to “privacy.” In Islam and ultra-Orthodox Judaism, for example, a woman can’t expose certain parts of her body to a man who isn’t related by blood or marriage. That can pose a real challenge in solo or small practices, where all of the clinicians are male.

 

When in doubt, a better solution is to ask the patient his or her preference—on the phone, when he or she calls for an appointment, or upon arrival at your office. Depending on the response you get, you may have to ask a same-sex colleague to see the patient.

 

Ask the patient, too, as the AMA suggests, whether she wants a chaperone in the room. This query is best addressed by the front desk staff or another staff member. If the doctor asks the question directly, the patient may feel pressure to say, “Of course not. I trust you.”

 

Moreover, if an impropriety is alleged, and the issue becomes a case of he said/she said, it’s better to have had a third party document the patient’s choice, rather than the self-interested doctor. Ideally, the patient’s choice can be made a part of the intake form, documented, and signed.

 

During sensitive examinations—such as pelvic, rectal, or breast examinations—doctors would be well-served to have a chaperone present. But even for less-intimate exams, it’s wise to ask for, and document, the patient’s preference.

 

Thankfully, most patients are motivated by the right instincts. But sometimes misunderstandings occur. And sometimes patients sense vulnerability and act maliciously, even if that wasn’t their first intention. Doctors who ask and act on the simple question—Could what I’m about to do be misinterpreted if there are no witnesses?—are more likely to avoid headaches down the road.

 

Author: Jeff Segal, Published in Medscape http://www.medscape.com/viewarticle/852865 12/3/2015