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Medical Justice

Making healthcare safe for doctors


Healthcare Reform

Two Counterintuitive HIPAA Scenarios

03/25/16 1:53 PM

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.

Posted by Medical Justice | in Healthcare Reform | 2 Comments »
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Anon
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Anon

The first scenario is more common, and the digital world we live in can be dangerous. Our practice has had a website and internet presence for the better part of twenty years, and Al Gore’s creation has become lawless. There are neither internet cops, nor HIPPA police, but the analog Medical Board may intervene if they become aware of violations. It’s ironic that physician rating sites enable the physician to respond, but in many instances, physician responses would need significant filtering to be HIPPApotamus compliant. The other reality is that even a nonspecific, generic response to a negative review may… Read more »

Joseph Horton
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Joseph Horton

OK. It’s obviously far from an equitable situation, but I sorta get it. Sorta.

If I get sued, does that mean that I can’t disclose information about the case except in the courtroom? Or, once it’s disposed of, can I talk openly about it and not be in violation? Clearly I cannot disclose things that are not germane to the case, but as far as information that came out in the trial, what’s still protected?

Turns out to be an important question….