0071643192.pdf

LEGAL ISSUES

The direction to address protected health information (PHI) was included

because of fears that electronic transfers and ID numbers could be misused.

So the law penalized disclosures of confidential health information that are

not authorized in writing by the patient and violate the privacy rule. PHI

includes (but is not limited to) name, postal address, telephone numbers, e-

mail addresses, social security numbers, medical record numbers, health plan

beneficiary numbers, vehicle identifiers, driver’s licenses, and biometric iden-

tifiers such as facial photographs and fingerprints.

The concept of confidentiality and the risk of civil liability that guided physi-

cians and hospitals in the past is now subsumed in HIPAA compliance rules.

The Secretary of Health and Human Services imposes civil monetary penal-

ties for violation of any HIPAA requirement, up to $25,000 per disclosure.

IMPORTANTPOINTSABOUTHIPAA ANDCONFIDENTIALITY

■ Any release of PHI to another health provider eg, getting information from

another hospital, must be accompanied by a signed release from the patient.

■ Mandatory reporting requirements to an agency (eg, a local health authority)

must include a written note of such disclosure in the patient’s medical

record.

■ Police do nothave automatic access to a patient’s medical record.

■ Disclosures for the purposes of treatment or “health care operations” are per-

mitted, except for psychotherapy notes,which have a special status. Disclo-

sures for billing are allowed, but may be limited by “minimum necessary” rules.

Tom is more drunk than usual, or is he? His head CT shows an epidural

hematoma. Does the neurosurgeon need consent before she drills?

No, unless his family is readily available.

CONSENT AND REFUSAL OF CARE

Precedents in the law regarding informed consent appear in the category of

suits for “battery,” defined as a harmful or offensive unpermitted touch. In the

medical context, touch is expected, but without consent, the emergency

physician can be liable for battery. All injuries resulting from the touch are

injuries for which the victim could sue even if there is no malpractice.

Consent can be

■ Expressed

■ Verbally

■ Written form

■ Implied

Informed Consent

Obtaining informed consent should be considered:

■ When the procedure is extraordinary, ie, not routine for most patients

■ When the procedure carries significant risks

■ When it is the community standard, ie, situations where others do it

■ Where hospital rules require it