Probation due to HIPAA violation

[MSTP18]

As I understand it's reputation the TX board can be brutal when handing out licenses but plays very defensively once you've already received one.

Christopher Duntsch - Wikipedia

en.m.wikipedia.org

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[Piebaldi]

Christopher Duntsch - Wikipedia

en.m.wikipedia.org

I remember reading about him. It's unclear though whether complaints were filed to the Board in a timely fashion. Sure there are many people with petty complaints - from the food, to staff that doesn't smile, to nursing being late and everything else under the sun - but in my opinion
when there are repeated and plentiful complaints about one physician - then that's a red flag. In both cases that I mentioned there are/have been countless negative statements made. Some things are also a red herring - for example the guy in question threatened to sue me for leaving a negative review, and then I continued getting harassing emails from his staff telling me to take down my review. then either him or someone in his office emailed me pretending to be a lawyer/sending correspondence back and forth as if they were communicating with a lawyer saying that i would be served. Completely wacko and crazy! Of course never happened. But still crazy.

 

[Crayola227]

Explain why you can’t look at your own psych records

Patients absolutely have the legal right to all their records, ultimately, but there are processes in place that are meant to minimize potential harms from some access under some circumstances. For example, it might not be advisable to give a positive HIV test result to a patient by way of an MA over the phone, or by them looking in MyChart.

My institution you could access your own chart, you just had to "break the glass" and under reason list "personal health record." That said, the psych notes were in a different system.

Most systems I've worked in, if you want the full meal deal of your records, there is a special department you submit a request in writing. There can be a fee, but to my understanding the fee and the time for turnaround on records is all legally mandated by HIPAA and meant to be fairly reasonable as such.

What's happening with OP is sorta BS, but we do a lot of legal BS on a daily basis.

 

[Wordead]

Yall are nuts. Did you all fail step 1 ethics? Do you not breeze through a yearly HIPAA course that a 3 year old can pass?

YOU CANNOT LOOK AT A ****ING FAMILY MEMBERS MEDICAL RECORD WITHOUT WRITTEN PERMISSION

I mean jesus christ I am just bewildered by the number of people saying it's not a big deal. It IS a big deal. People hide medical issues from their family all the time. OP is so lucky to not have been fired.

 

[Merely]

Yall are nuts. Did you all fail step 1 ethics? Do you not breeze through a yearly HIPAA course that a 3 year old can pass?

YOU CANNOT LOOK AT A ****ING FAMILY MEMBERS MEDICAL RECORD WITHOUT WRITTEN PERMISSION

I mean jesus christ I am just bewildered by the number of people saying it's not a big deal. It IS a big deal. People hide medical issues from their family all the time. OP is so lucky to not have been fired.

Bro it’s his wife that was with him calm down

 

[Piebaldi]

Bro it’s his wife that was with him calm down

This.

 

[NotAProgDirector]

Bro it’s his wife that was with him calm down

This.

Not trying to harp on this or you, but you are completely wrong here. It's a huge deal. Does not matter that his wife was with him, or that she said it was OK. Unless he has written permission previously filed in the chart, and even then can be hospital dependent. Hospitals take HIPAA very seriously. You can easily get fired without warning, and a complaint filed to your medical license. This is not a minor issue, and your lack of recognition of the seriousness of this issue is a problem.

Perhaps you think the law and rules are silly and overblown. That's fine. But it's the law, and it's a HUGE issue. You cannot look at your family member's records. Children under 12 might be OK (since you actually get to consent for them). Once they are more than 12, and certainly when more than 17, it's a huge problem again.

 

[Piebaldi]

Not trying to harp on this or you, but you are completely wrong here. It's a huge deal. Does not matter that his wife was with him, or that she said it was OK. Unless he has written permission previously filed in the chart, and even then can be hospital dependent. Hospitals take HIPAA very seriously. You can easily get fired without warning, and a complaint filed to your medical license. This is not a minor issue, and your lack of recognition of the seriousness of this issue is a problem.

Perhaps you think the law and rules are silly and overblown. That's fine. But it's the law, and it's a HUGE issue. You cannot look at your family member's records. Children under 12 might be OK (since you actually get to consent for them). Once they are more than 12, and certainly when more than 17, it's a huge problem again.

we got scolded by aPD

 

[gutonc]

we got scolded by aPD

For a very good reason.

 

[Mad Jack]

I sympathize with you. I think we have swung the pendulum so far, I think it’s stupid.

I agree with the above poster. With one little point to add. Are you joining a private practice or a large health care system? I’d venture to say most physicians will find this incident somewhat over-reaching and cringing, but not a deal breaker. Not long ago, I admitted a patient whose physician is his son, and POA is another son. If that’s not weird and violating ethical guidelines, I don’t know what is. However if you have to deal with a large health system who will not overlook anytime you are “written up....” then you need to start arming yourself up. Or look into if you can get this problem expunged if your wife says she actually knew you were looking in her record.
Good luck op.

This isn't the pendulum swinging too far, this is a massive privacy and ethical violation. If you were looking into your own records, that would be one thing, but looking into the records of a partner often has some nefarious intent, usually revolving around perceived dishonesty- determining whether they are cheating, pregnant, using drugs, what medications they are on, etc. Anyone doing this at any of the hospitals at which I have ever worked has been unceremoniously and immediately fired, so OP got off easy

 

[Mad Jack]

Explain why you can’t look at your own psych records

Because psychiatry is a process and often patients are not yet in a place to hear their diagnosis when it is arrived at. You need to cultivate a relationship with a patient before broaching some topics, and them reading your notes can therefore be damaging to not only the physician-patient relationship but also to the patient's mental health

 

[IMGASMD]

This isn't the pendulum swinging too far, this is a massive privacy and ethical violation. If you were looking into your own records, that would be one thing, but looking into the records of a partner often has some nefarious intent, usually revolving around perceived dishonesty- determining whether they are cheating, pregnant, using drugs, what medications they are on, etc. Anyone doing this at any of the hospitals at which I have ever worked has been unceremoniously and immediately fired, so OP got off easy

I respectfully disagree. What about verbal consent? He has the permission of his wife does that count for something/anything? What about presume innocent until proven guilty.

I’ve had a hospital where I worked at, which tried to charge me a processing fee for printing my own records, how does that make sense? Whose record is it anyway? I’ve had ED physician just printed my lab results and gave to me, because she knows just to see those again will take 2 weeks and a dozen forms.

I try to practice with common sense and perhaps with the sprit of medicine (do no harm, autonomy, and rest of our medical obligations) and not the “letters” of the law.

I maybe naive, I think most doctors don’t intend to harm anyone (especially significant other in this case) by our actions. I also believe some rules/protocols/laws are just plain not right.

I like draw from my own experiences. Have your resident/colleague/family member ask you to just write a prescription for antibiotics, steroid cream? Have you done it? I have. Do I keep a record? Do I do any kind of physical exams? For a z-pack? Do you?

Is it a slippery slope? I’d argue both sides can be. That’s why it’s a pendulum swinging at all times.

Drop mike. Fine. “Lock him up, lock him up!”

 

[Mad Jack]

I respectfully disagree. What about verbal consent? He has the permission of his wife does that count for something/anything? What about presume innocent until proven guilty.

I’ve had a hospital where I worked at, which tried to charge me a processing fee for printing my own records, how does that make sense? Whose record is it anyway? I’ve had ED physician just printed my lab results and gave to me, because she knows just to see those again will take 2 weeks and a dozen forms.

I try to practice with common sense and perhaps with the sprit of medicine (do no harm, autonomy, and rest of our medical obligations) and not the “letters” of the law.

I maybe naive, I think most doctors don’t intend to harm anyone (especially significant other in this case) by our actions. I also believe some rules/protocols/laws are just plain not right.

I like draw from my own experiences. Have your resident/colleague/family member ask you to just write a prescription for antibiotics, steroid cream? Have you done it? I have. Do I keep a record? Do I do any kind of physical exams? For a z-pack? Do you?

Is it a slippery slope? I’d argue both sides can be. That’s why it’s a pendulum swinging at all times.

Drop mike. Fine. “Lock him up, lock him up!”

This isn't even close any of the other situations mentioned

 

[VA Hopeful Dr]

I respectfully disagree. What about verbal consent? He has the permission of his wife does that count for something/anything? What about presume innocent until proven guilty.

I’ve had a hospital where I worked at, which tried to charge me a processing fee for printing my own records, how does that make sense? Whose record is it anyway? I’ve had ED physician just printed my lab results and gave to me, because she knows just to see those again will take 2 weeks and a dozen forms.

I try to practice with common sense and perhaps with the sprit of medicine (do no harm, autonomy, and rest of our medical obligations) and not the “letters” of the law.

I maybe naive, I think most doctors don’t intend to harm anyone (especially significant other in this case) by our actions. I also believe some rules/protocols/laws are just plain not right.

I like draw from my own experiences. Have your resident/colleague/family member ask you to just write a prescription for antibiotics, steroid cream? Have you done it? I have. Do I keep a record? Do I do any kind of physical exams? For a z-pack? Do you?

Is it a slippery slope? I’d argue both sides can be. That’s why it’s a pendulum swinging at all times.

Drop mike. Fine. “Lock him up, lock him up!”

How do you prove verbal consent was given at the time and not just to protect said spouse now that they got caught?

As for family, yes I've done it, yes I've seen them in person at least once and examined them, and yes I keep records. I have a lockable file cabinet at my house for just this reason.

Beyond all that HIPAA isn't a new law. Its been drilled into our heads since its inception that you DO NOT violate it. And yes, we could argue that its overkill but that's not the point. You know its wrong, you do it anyway, you have to face the consequences.

 

[IMGASMD]

How do you prove verbal consent was given at the time and not just to protect said spouse now that they got caught?

As for family, yes I've done it, yes I've seen them in person at least once and examined them, and yes I keep records. I have a lockable file cabinet at my house for just this reason.

Beyond all that HIPAA isn't a new law. Its been drilled into our heads since its inception that you DO NOT violate it. And yes, we could argue that its overkill but that's not the point. You know its wrong, you do it anyway, you have to face the consequences.

I don’t know. But the last time I checked, if the person who is impacted, his wife, saying it was given, then what? Does the punishment fit the crime?

Good for you. I guess I have some very unethical co-residents.

I never say that he SHOULD NOT be punished. But still, one strike and you’re out, isn’t really protecting the patient nor health care worker who violated the law as far as I am concerned.

Lock him up, lock him up!

 

[IMGASMD]

This isn't even close any of the other situations mentioned

My point is, if you have you’ve probably violated a dozen rules/protocol/laws. Maybe you should be fired too.

 

[Mad Jack]

My point is, if you have you’ve probably violated a dozen rules/protocol/laws. Maybe you should be fired too.

I actually haven't. But I'm like, the most by-the-book guy when it comes to work, don't screw around. But those violations aren't violations of federal law that can carry civil and criminal penalties, so you're still erecting quite a large strawman regardless

 

[rokshana]

I don’t know. But the last time I checked, if the person who is impacted, his wife, saying it was given, then what? Does the punishment fit the crime?

Good for you. I guess I have some very unethical co-residents.

I never say that he SHOULD NOT be punished. But still, one strike and you’re out, isn’t really protecting the patient nor health care worker who violated the law as far as I am concerned.

Lock him up, lock him up!

Point being is that you know the rules,laws,policies, why ever you want to call it and if you decided to violate it, you have to expect to pay the consequences...you think something is wrong, fine ...change it...or if your way to “change” it is to flout authority, then you should also be willing to deal with the fallout as well.

 

[Gastrapathy]

I’m always confused when someone does something really dumb and is surprised at the consequences. Then I read threads like this and it gets less confusing.

Domestic violence victims will often protect their attacker to preserve his livelihood. An abusive husband physician who violated his wife’s privacy could create the same pressure to generate retroactive permission. The policy isn’t about the OP specifically, it’s to protect the institution from those kinds of situations. I honestly think the OP who made the mistake has better insight than half the posters here. What the heck is going on?

 

[VA Hopeful Dr]

I don’t know. But the last time I checked, if the person who is impacted, his wife, saying it was given, then what? Does the punishment fit the crime?

Good for you. I guess I have some very unethical co-residents.

I never say that he SHOULD NOT be punished. But still, one strike and you’re out, isn’t really protecting the patient nor health care worker who violated the law as far as I am concerned.

Lock him up, lock him up!

And you're free to think that HIPAA is too harsh (I might even agree), but that's not the point.

Yes, you clearly do have unethical co-residents, but there is a big difference between violating state medical board policy and violating HIPAA.

 

[Piebaldi]

I’m always confused when someone does something really dumb and is surprised at the consequences. Then I read threads like this and it gets less confusing.

Domestic violence victims will often protect their attacker to preserve his livelihood. An abusive husband physician who violated his wife’s privacy could create the same pressure to generate retroactive permission. The policy isn’t about the OP specifically, it’s to protect the institution from those kinds of situations. I honestly think the OP who made the mistake has better insight than half the posters here. What the heck is going on?

Domestic violence is a very complicated issue - there are countless factors in domestic violence that go far beyond just the cognitive/emotional/psychological/fear issues, but also very real issues of child custody, lack of financial resources ( particularly for wives), lack of possibility to acquire legal help to help their abuser who is typically also their provider, immigration status, etc. etc.

So the situation above is far from something we can compare that to.

Additionally part of the problem is that there is a double standard with many things. i recently gave an example of having made a mistake because of poor signage of entering a patient's room who was on contact without the proper attire. I apologized, brought up the fact that I did not think there was signgage or if there was I missed it, discussed the situation with the facility's administrator, etc. Big deal was made out of things.

The other day I was having patient conferences with one of the social workers and the rehab manager in the facility - both ultimately entered a. patient's room iwthout protective equipment, knowing that the patient was on isolation. So here other than myself I guess no one say it - but it's still technically wrong.

So the problem is the lack of enforzability (sp? is that a word?) that is similar across the board. So here OP did something when he had his wife's consent. I also posted about my colleagues who inappropriately looked at my records - numerous colleagues - all bright, good people who know better. I obviously am sure that if I reported it, could have gotten all of them fired but obviously I wouldn't want that.

Point being - there needs to be rationality to how things are enforced, and a right punishment fitting the crime. I don't think if the OP got fired in his last or next to last month of residency for doing something like that, i twould make sense. Perhaps a warning, a fine whatever. But firing or probation seems over the top - particularly bc there was no malice.

 

[NotAProgDirector]

Again, please don't take any of this personally. This isn't an attack on you.

I respectfully disagree. What about verbal consent? He has the permission of his wife does that count for something/anything? What about presume innocent until proven guilty.

Verbal consent has the same worth as the paper it is written on. The law requires written consent. Your spouse could claim they didn't give you consent, or that they were coerced. Even if they back your story, written consent is required.

I’ve had a hospital where I worked at, which tried to charge me a processing fee for printing my own records, how does that make sense? Whose record is it anyway? I’ve had ED physician just printed my lab results and gave to me, because she knows just to see those again will take 2 weeks and a dozen forms.

It's perfectly legal for a hospital to charge you the cost of generating a copy of your records. It's your record, they can't refuse to give it to you. But they can charge you for the staff time and supplies for printing your records.

It's also fine for an ED doc to print them for you for free.

I try to practice with common sense and perhaps with the sprit of medicine (do no harm, autonomy, and rest of our medical obligations) and not the “letters” of the law.

I maybe naive, I think most doctors don’t intend to harm anyone (especially significant other in this case) by our actions. I also believe some rules/protocols/laws are just plain not right.

That's your choice. Should you violate the law, this will be no defense. If you're suggesting that you're practicing a form of civil disobedience, feel free to do so -- but you still are breaking the law and may be found guilty of it.

I like draw from my own experiences. Have your resident/colleague/family member ask you to just write a prescription for antibiotics, steroid cream? Have you done it? I have. Do I keep a record? Do I do any kind of physical exams? For a z-pack? Do you?

If a colleague asks for any of these things, I usually arrange for them to be seen. Writing Zpaks for URI's is just bad practice and I don't do it for my patients in any case. If I do any of these things, I ABSOULTELY keep a record of it. I put a note in the chart. Not doing so is a violation of your medical license. We have had several physicians lose their license over this exact issue.

Is it a slippery slope? I’d argue both sides can be. That’s why it’s a pendulum swinging at all times.

Drop mike. Fine. “Lock him up, lock him up!”

I don't see this as a problem. Medical record privacy is a good thing. It's simple enough to get a written consent if your spouse wants you to muck in their chart. As many EMR's now have web portals, it's not really necessary at all in many cases.

But you may disagree, and that's totally fine.

 

[ICmyFuture]

Accessing medical records via EMR with your login credentials does not feel like a big deal. Looking at my wife's records, in her presence, on the computer screen because she has further questions about labs/imaging etc initially feels innocent.

However, go back 20 years. I walk into her doctor's office, in the same hospital system that I work at, with my white coat and badge. Front desk and other employees see but but dont say anything because I am a physician. I go to where the records are stored. I find her folder, grab it from the shelf. I walk out of the office, drive back to my home. Wife and I look over it. I dont make any changes but maybe I make some copies for our own records. I go back to the office and place her chart back on the shelf. This to me does not feel innocent. This is wrong on a number of levels and I should have known. Maybe I just committed a crime. You cant look ay family members records, have them request them through proper channel, then review them.

 

[Wordead]

You guys can do whatever you want, just don't complain when you're fired. I feel like Im being trolled that so many people are offering up this *****ic "she was sitting next to him" explanation as though that means a damn thing in a court of of law or that it wouldn't be open to abuse.

 

[IMGASMD]

Again, please don't take any of this personally. This isn't an attack on you.



Verbal consent has the same worth as the paper it is written on. The law requires written consent. Your spouse could claim they didn't give you consent, or that they were coerced. Even if they back your story, written consent is required.



It's perfectly legal for a hospital to charge you the cost of generating a copy of your records. It's your record, they can't refuse to give it to you. But they can charge you for the staff time and supplies for printing your records.

It's also fine for an ED doc to print them for you for free.



That's your choice. Should you violate the law, this will be no defense. If you're suggesting that you're practicing a form of civil disobedience, feel free to do so -- but you still are breaking the law and may be found guilty of it.



If a colleague asks for any of these things, I usually arrange for them to be seen. Writing Zpaks for URI's is just bad practice and I don't do it for my patients in any case. If I do any of these things, I ABSOULTELY keep a record of it. I put a note in the chart. Not doing so is a violation of your medical license. We have had several physicians lose their license over this exact issue.



I don't see this as a problem. Medical record privacy is a good thing. It's simple enough to get a written consent if your spouse wants you to muck in their chart. As many EMR's now have web portals, it's not really necessary at all in many cases.

But you may disagree, and that's totally fine.

I appreciate your comments and preface. I had refrained myself to further commenting for a reason.

To recap my positions. I believe the pendulum has swung too far. I’ve always believed a physician strives to do no harm. We really don’t know what made the op look into the chart. What if it’s Friday and the result is back for something bad, cancer marker, let’s say. And your physicians office is closed, the wife said, “why don’t you take a look, so I don’t worry for three days?” What do you say?”

SDN answer: heelllllllll nooooooo. I get fired no doubt! I ain’t jeopardize my ass for your three days comfort.
My answer: sure hon.

I don’t think calling op to be fired or blinding saying that op was lucky for only getting a warning without knowing any details is something that I am welling to do. I didn’t think this was a debate about right or wrong, to me, it’s a discussion about does this kind of punishment is really fit into common sense schema of my world.

The op was worried what’s the implication for his future jobs and license application. If scenario happened as I described or something much less sinister than we have been speculating, I personally would feel very sorry for the OP.

You may be at a much nicer programs than where I trained. I would never think of taking a few hours off to see a doctor when I have URI. One of my former programs would not even take our insurance at the clinic. So maybe we’d ask z-pack after 14 days of URI with snot turning green. I guess I am just as unethical for asking ¯\_(ツ)_/¯

I am not debating whether we should or should not have HIPPA. (Hip hip hooray). I was trying to steer the op to a “better” resolution than just “oh you should be glad that you didn’t get fired. Count your blessings.”

—————————————

Lock him up! Lock him up!
He no good man. He looked into a confidential record that his wife was coerced to say that he had permission to see. He violated HIPPA and he should have know better.

I’ve know someone who abused benzo and opioids while in training who got caught. Fought tooth and nail threatened to sue hospital by using HIPPA and disability act to not have any sort of disciplinary actions in the record. Yes I am sympathetic to the OP.

 

[VA Hopeful Dr]

I appreciate your comments and preface. I had refrained myself to further commenting for a reason.

To recap my positions. I believe the pendulum has swung too far. I’ve always believed a physician strives to do no harm. We really don’t know what made the op look into the chart. What if it’s Friday and the result is back for something bad, cancer marker, let’s say. And your physicians office is closed, the wife said, “why don’t you take a look, so I don’t worry for three days?” What do you say?”

SDN answer: heelllllllll nooooooo. I get fired no doubt! I ain’t jeopardize my ass for your three days comfort.
My answer: sure hon.

I don’t think calling op to be fired or blinding saying that op was lucky for only getting a warning without knowing any details is something that I am welling to do. I didn’t think this was a debate about right or wrong, to me, it’s a discussion about does this kind of punishment is really fit into common sense schema of my world.

The op was worried what’s the implication for his future jobs and license application. If scenario happened as I described or something much less sinister than we have been speculating, I personally would feel very sorry for the OP.

You may be at a much nicer programs than where I trained. I would never think of taking a few hours off to see a doctor when I have URI. One of my former programs would not even take our insurance at the clinic. So maybe we’d ask z-pack after 14 days of URI with snot turning green. I guess I am just as unethical for asking ¯\_(ツ)_/¯

I am not debating whether we should or should not have HIPPA. (Hip hip hooray). I was trying to steer the op to a “better” resolution than just “oh you should be glad that you didn’t get fired. Count your blessings.”

—————————————

Lock him up! Lock him up!
He no good man. He looked into a confidential record that his wife was coerced to say that he had permission to see. He violated HIPPA and he should have know better.

I’ve know someone who abused benzo and opioids while in training who got caught. Fought tooth and nail threatened to sue hospital by using HIPPA and disability act to not have any sort of disciplinary actions in the record. Yes I am sympathetic to the OP.

What we all did was snag a fellow resident and say "Hey I'm feeling bad, think its this, can you call something in?". They'd do a 30 second exam, document a 4 line note in the EMR, and everything was good. Took under 5 minutes.

As for HIPAA, whether or not its right the rules are very clear as are the usual consequences for breaking them. I get what you're trying to do, but there's very little the OP can do to mitigate this other than maybe begging for mercy and in this instance I don't think that would do much good.

 

[hallowmann]

Generally speaking, written consent is required for the transmission of PHI to an individual, but that's not the whole story:

"Outside of the HIPAA right of access, other provisions in the Privacy Rule address disclosures to family members. Specifically, a covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object."

2069-Under HIPAA, when can a family member of an individual access the individual’s PHI from a health care provider or health plan?

www.hhs.gov

The problem with laws is that they are written in sometimes misleading or unclear ways. They were after all written by people. Most healthcare systems simplify this (and shield themselves from legal risk) by just requiring written consent for everything, and that's up to them.

 

[IMGASMD]

If it wasn’t clear from my last few posts. I hold hospital and administrations responsible too. AFAIC, all these enforcements (certainly up to the hospital systems themselves) are protecting them more than the patients. There is no common sense approach to anything anymore. But I digress.

——————
Lock him up. Lock him up. OP you should be happy they didn’t fire your a$5.

 

[Crayola227]

It is really frustrating when the MD hasn't released my test results and I contact the office (in person even, with photo ID) and they try to tell me I can't have them. I just recently through a fit about it when I wanted to know the results of a test for a UTI when I was going out of town and needed to hit the pharmacy had it been positive. I definitely am spoiled from having EHR access previously.

In any case, clicking into your own chart is not a HIPAA violation, although it could be a violation of hospital policy on EHR access. And they can mandate how you use your access, period.

At least at my institution, we were told that you could indeed get into someone you know's chart at their verbal request. I agree that in the case of family members and spouses the ethics are more complicated. We were cautioned that going into a chart at a verbal request of someone we weren't officially treating could bite us a big one if the person in question were to object at any point, and there would be no recourse.

At least at my institution, they explained that application of HIPAA is often sort of bastardized from the actual letter of the law, twisted to serve liability. It isn't always legal and it does actually impede patient care.

"A covered entity may disclose PHI to certain parties to facilitate treatment, payment, or health care operations without a patient's express written authorization. "

This is actually pretty broad, and broad with respect to what facilitating treatment means, and most written forms to transfer records are just waste of paper CYA. Most of the HIPAA Title II was to protect PHI from employers, not provider to provider.

That's all very nitpicky on the topic of HIPAA. I agree that getting into wife's chart is ethically problematic, with or without written permission, and should just have been avoided on that basis alone. I agree that the OP majorly screwed up, not because what he did is even necessarily prosecutable per HIPAA, it probably isn't. HOWEVER your institution can make any number of rules and if you don't follow them to the letter there is trouble. In reality nothing nefarious nor actually illegal probably occurred here, but that's not really the point.

 

[Mass Effect]

Excellent point, although I don't think that's quite as unique to psych as the therapist-patient dynamic. Many other specialties prescribe drugs with abuse potential and you won't see the same protections on notes from medicine, neuro, ortho, PM&R, etc. I guess the counterargument is that those specialties have physical exam findings that are hard to fake, but most clinically validated psychometric testing has questions meant to detect dishonesty and something like muscle spasms isn't going to have much in the way of findings unless the patient is actively spasming in the office. I imagine a significant portion of the people prescribed muscle relaxants didn't have impressive exam findings at the time of the script

Wait, what? Are you saying that it's easier to fake a muscle spasm than it is to fake depression in an outpatient visit?

Domestic violence is a very complicated issue - there are countless factors in domestic violence that go far beyond just the cognitive/emotional/psychological/fear issues, but also very real issues of child custody, lack of financial resources ( particularly for wives), lack of possibility to acquire legal help to help their abuser who is typically also their provider, immigration status, etc. etc.

So the situation above is far from something we can compare that to

While domestic violence can include those things, it doesn't have to include those things. The point the poster was making is that there's a very good reason there are safeguards in place, even for spouses, and they can't minimize this incident because he's a spouse, nor should they.

 

[MSTP18]

Wait, what? Are you saying that it's easier to fake a muscle spasm than it is to fake depression in an outpatient visit?



While domestic violence can include those things, it doesn't have to include those things. The point the poster was making is that there's a very good reason there are safeguards in place, even for spouses, and they can't minimize this incident because he's a spouse, nor should they.

No, what I'm saying is that in my experience, a large proportion of patients are not actively spasming in the office at the time of their diagnosis of muscle spasms, and therefore it's not any harder to fake a diagnosis of muscle spasms than depression. If you require the presence of active spasms in the office then yeah, it's harder to fake a muscle spasm than depression.

 

[Crayola227]

I think we are severely missing the point if we don't see how psych records and treatment are somewhat different from other areas of medicine, and that it might have some implications for how that information is shared with patients in order to do the most good/least harm.

 

[Crayola227]

Honestly I see the point that people are making that this wasn't wise for a number of reasons, and so what happened to the OP is not at all surprising. That said, I still think it's lame sauce, and even reading the rules on HIPAA, I'm not convinced specifically based on HIPAA alone, that what he did was wrong, as the wife is backing up that that it was with her permission and she is not objecting.

Now, as to the point that perhaps she's just being coerced, well, in court that doesn't fly for proving he did not have her permission. You can say it's worth the paper it isn't written on so he's screwed, but actually, that's not how that would work in court. In the absence of proof, coerced or not, what she says regarding consent is what will apply. You can say he's in trouble because he can't prove that he had this permission, but without her word, no one can prove he didn't. This is why the legal system's hands are tied when women lie to protect their abusers. They can't say she was coerced if she won't say she was.

These are all reasons for the hospital to create policy regarding this, and this was pointed out by aPD and is valid, but it is not an argument that stands up legally to prove that he did not have her consent, and so on that basis, violated HIPAA. But I'm not an attorney.

To my mind, he violated BS hospital policy, not HIPAA specifically, if he did have permission, and none of us can prove he didn't if that is his wife's story. That said, it doesn't matter if this wasn't actually a HIPAA violation in spirit or in practice, the hospital can do as they like regarding this. Which is why you have to follow hospital policy no matter how idiotic or even counter HIPAA and patient care.

The funny thing is, reviewing about HIPAA, it seems that besides a few nightmare cases that obviously have hospitals acting pretty CYA, most HIPAA complaints go nowhere. Again, I doubt this is actually a provable nor actionable violation per HIPAA given that she is not objecting, and I doubt anything would come of it should it be reported (and guess who would have to the the person to object for it to be an issue??).

It's a big deal because of ethics and the hospital making a big deal. The ethics make the argument for the rules, the OP is still absolved if he actually did have her permission, the bigger issue then being that he broke a rule intended to protect other spouses from records access by spouses, whom he cannot know are acting ethically. I think a warning for breaking hospital policy would be fair, but if what he did is forbidden by policy and it's within their rights, then that is that.

What's ridiculous isn't that people are basically saying, "That's hospital policy most places, so there you go," it's more acting like this guy is some sort of felon violating the sacrosanct HIPAA laws which are basically made up hospital policy at this point in how they're applied.

 

[Perrotfish]

And you're free to think that HIPAA is too harsh (I might even agree), but that's not the point... there is a big difference between violating state medical board policy and violating HIPAA.

Verbal consent has the same worth as the paper it is written on. The law requires written consent.

It seems like there are a lot of physicians that don't know what the privacy rule actually says. It specifically states that, while individual health systems may require written consent for release of records, HIPAA does not require written or even positive verbal consent for the release of medical records. Consent is implied if the patient has been given a reasonable chance to object to the release of their records and did not do so.

If you think about it you already knew that. Unless you're a psychiatrist or a pediatrician chances are you routinely disclose HIPAA protected information to a patient's family members without written or positive verbal consent. Our patients present all the time in the presence of their significant others/parents/adult children/minor children/unrelated friends. When they do that odds are you discuss their medical information and, in the process, disclose it to the people they brought along. And that is not a HIPAA violation. The patient clearly knew that they were there to discuss their health information, they understood that their family member would hear everything said to them, and by not asking them to leave they implied consent for everyone else in the room to hear everything that is discussed.

While the OP did clearly violate his hospital's policy he did not, if he is telling the truth, violate HIPAA. While there are good reasons for a provider, particularly a trainee, not to look up the charts of their family members the response seems disproportionate. The justification that implied/verbal consent isn't valid because it can be coerced, or revoked later in court, is completely out of sync with how we otherwise practice medicine. Every time someone walks into clinic with their spouse in tow they could later argue that they were objecting to their spouse knowing their medical records, or that their spouse had used coercion to tag along, but I have yet to see a practice that demands that the patient sign a waiver to take family members into the room. Unless the OPs wife said that she did NOT consent to have her chart looked at, or unless the OP was looking at information that his wife did not have the right of access to (pending litigation, psychotherapy notes) a reasonable first step should have been written counseling, advancing to probation only for repeat offenses.

Again, I am not saying anyone should look at their family member's charts, or that some kind of response wasn't necessary, but a lot of the people responding to this have leadership positions in healthcare. If you guys are confronted with this issue in your own program I think you should be considering something other than probation/termination for a first offense of someone looking at their family members chart with that family member's consent.

 

[VA Hopeful Dr]

It seems like there are a lot of physicians that don't know what the privacy rule actually says. It specifically states that, while individual health systems may require written consent for release of records, HIPAA does not require written or even positive verbal consent for the release of medical records. Consent is implied if the patient has been given a reasonable chance to object to the release of their records and did not do so.

If you think about it you already knew that. Unless you're a psychiatrist or a pediatrician chances are you routinely disclose HIPAA protected information to a patient's family members without written or positive verbal consent. Our patients present all the time in the presence of their significant others/parents/adult children/minor children/unrelated friends. When they do that odds are you discuss their medical information and, in the process, disclose it to the people they brought along. And that is not a HIPAA violation. The patient clearly knew that they were there to discuss their health information, they understood that their family member would hear everything said to them, and by not asking them to leave they implied consent for everyone else in the room to hear everything that is discussed.

While the OP did clearly violate his hospital's policy he did not, if he is telling the truth, violate HIPAA. While there are good reasons for a provider, particularly a trainee, not to look up the charts of their family members the response seems disproportionate. The justification that implied/verbal consent isn't valid because it can be coerced, or revoked later in court, is completely out of sync with how we otherwise practice medicine. Every time someone walks into clinic with their spouse in tow they could later argue that they were objecting to their spouse knowing their medical records, or that their spouse had used coercion to tag along, but I have yet to see a practice that demands that the patient sign a waiver to take family members into the room. Unless the OPs wife said that she did NOT consent to have her chart looked at, or unless the OP was looking at information that his wife did not have the right of access to (pending litigation, psychotherapy notes) a reasonable first step should have been written counseling, advancing to probation only for repeat offenses.

Again, I am not saying anyone should look at their family member's charts, or that some kind of response wasn't necessary, but a lot of the people responding to this have leadership positions in healthcare. If you guys are confronted with this issue in your own program I think you should be considering something other than probation/termination for a first offense of someone looking at their family members chart with that family member's consent.

That's called informal permission (yes I'm aware of it) and there's a problem with it in this scenario. We have no proof that the wife consented (or even had a chance to object). This part of the rule is generally used for common sense stuff - not kicking family out of hospital rooms when you're discussing diagnosis/treatment with the patient, the examples you listed, stuff like that.

 

[calvnandhobbs68]

That's called informal permission (yes I'm aware of it) and there's a problem with it in this scenario. We have no proof that the wife consented (or even had a chance to object). This part of the rule is generally used for common sense stuff - not kicking family out of hospital rooms when you're discussing diagnosis/treatment with the patient, the examples you listed, stuff like that.

In what way would you not have proof that the wife consented? If the resident is telling the truth it would be easy enough for the wife to call the GME director or even present in person to the office and confirm that she did give consent. I don't buy the "what if he was pressuring her to do it" argument either...you could argue that at any point. What if she signed a form saying he could access her medical records and wanted to revoke it later when he started abusing her, but he continued to pressure her not to revoke it? You could make up any number of scenarios.

I agree that this is a little over the top if the wife was okay with it and can confirm that she did consent to him pulling up her records at that time. Yes, he probably violated a hospital policy, but if you're going with the spirit instead of the letter of the law this isn't quite on the same level as looking up a records without someone's permission (which is really what these broad reaching policies are meant to protect from).

 

[Perrotfish]

That's called informal permission (yes I'm aware of it) and there's a problem with it in this scenario. We have no proof that the wife consented (or even had a chance to object). This part of the rule is generally used for common sense stuff - not kicking family out of hospital rooms when you're discussing diagnosis/treatment with the patient, the examples you listed, stuff like that.

1) We do have a very significant piece of proof that the wife did consent: her testimony. She is saying she was there and (informally) consented to him seeing the information.

2) Do you have proof that all of the patients who you have seen with their family members didn't object? Did they sign something afterwards, or did you have a witness? If not how is that different than the OP's scenario?

 

[VA Hopeful Dr]

1) We do have a very significant piece of proof that the wife did consent: her testimony. She is saying she was there and (informally) consented to him seeing the information.

2) Do you have proof that all of the patients who you have seen with their family members didn't object? Did they sign something afterwards, or did you have a witness? If not how is that different than the OP's scenario?

That's not proof. That's her saying after the fact that she's OK with it.

Yes, a non-related person (or people) in the form of every healthcare worker who comes into the room with the family.

 

[VA Hopeful Dr]

In what way would you not have proof that the wife consented? If the resident is telling the truth it would be easy enough for the wife to call the GME director or even present in person to the office and confirm that she did give consent. I don't buy the "what if he was pressuring her to do it" argument either...you could argue that at any point. What if she signed a form saying he could access her medical records and wanted to revoke it later when he started abusing her, but he continued to pressure her not to revoke it? You could make up any number of scenarios.

I agree that this is a little over the top if the wife was okay with it and can confirm that she did consent to him pulling up her records at that time. Yes, he probably violated a hospital policy, but if you're going with the spirit instead of the letter of the law this isn't quite on the same level as looking up a records without someone's permission (which is really what these broad reaching policies are meant to protect from).

What proof do you have other than her saying, after the fact mind you, that she was OK with it?

 

[sunshinefl]

It seems like there are a lot of physicians that don't know what the privacy rule actually says. It specifically states that, while individual health systems may require written consent for release of records, HIPAA does not require written or even positive verbal consent for the release of medical records. Consent is implied if the patient has been given a reasonable chance to object to the release of their records and did not do so.

If you think about it you already knew that. Unless you're a psychiatrist or a pediatrician chances are you routinely disclose HIPAA protected information to a patient's family members without written or positive verbal consent. Our patients present all the time in the presence of their significant others/parents/adult children/minor children/unrelated friends. When they do that odds are you discuss their medical information and, in the process, disclose it to the people they brought along. And that is not a HIPAA violation. The patient clearly knew that they were there to discuss their health information, they understood that their family member would hear everything said to them, and by not asking them to leave they implied consent for everyone else in the room to hear everything that is discussed.

While the OP did clearly violate his hospital's policy he did not, if he is telling the truth, violate HIPAA. While there are good reasons for a provider, particularly a trainee, not to look up the charts of their family members the response seems disproportionate. The justification that implied/verbal consent isn't valid because it can be coerced, or revoked later in court, is completely out of sync with how we otherwise practice medicine. Every time someone walks into clinic with their spouse in tow they could later argue that they were objecting to their spouse knowing their medical records, or that their spouse had used coercion to tag along, but I have yet to see a practice that demands that the patient sign a waiver to take family members into the room. Unless the OPs wife said that she did NOT consent to have her chart looked at, or unless the OP was looking at information that his wife did not have the right of access to (pending litigation, psychotherapy notes) a reasonable first step should have been written counseling, advancing to probation only for repeat offenses.

Again, I am not saying anyone should look at their family member's charts, or that some kind of response wasn't necessary, but a lot of the people responding to this have leadership positions in healthcare. If you guys are confronted with this issue in your own program I think you should be considering something other than probation/termination for a first offense of someone looking at their family members chart with that family member's consent.

That's called informal permission (yes I'm aware of it) and there's a problem with it in this scenario. We have no proof that the wife consented (or even had a chance to object). This part of the rule is generally used for common sense stuff - not kicking family out of hospital rooms when you're discussing diagnosis/treatment with the patient, the examples you listed, stuff like that.

At a personal level, every time I go to a new doctor, part of the pile of forms is if you consent to them giving info to family and who. I have always said NO since I was old enough to. NO to my parents then, NO to my husband now. If I want him to know, I will tell him. Just NO.

At a professional level, (yes I am only a rising M3 but I was an RN before medical school) yes I do absolutely ask the patient if it is okay to proceed with whatever I was going to do with them when I walk into the room and they have family or visitors there. 100% of the time if they are at all responsive.

 

[calvnandhobbs68]

What proof do you have other than her saying, after the fact mind you, that she was OK with it?

What? Is she somehow incompetent for some reason and cannot remember that she gave permission at that time? You're basically stating that you can't trust her response for anything...

Again, if the person who you're supposed to be "protecting" states that they gave permission for this breach of your "protection", I still think you're sticking more to the letter of the law than the spirit of the law. Little bit of big brother "I know what's best for you" mentality there.

 

[VA Hopeful Dr]

What? Is she somehow incompetent for some reason and cannot remember that she gave permission at that time? You're basically stating that you can't trust her response for anything...

Again, if the person who you're supposed to be "protecting" states that they gave permission for this breach of your "protection", I still think you're sticking more to the letter of the law than the spirit of the law. Little bit of big brother "I know what's best for you" mentality there.

No, I'm saying you can't trust a verbal statement when the only person who heard it was her husband acting as a covered entity.

I don't disagree that this is the letter of the law more than the spirit, but that's often how these things are interpreted.

 

[NotAProgDirector]

The system is designed to protect the vulnerable. This does create extra hoops to jump through for valid access, and I'm OK with that. Others might choose easier access with a higher chance of abuse.

Even with all of that, I still think it's a really bad habit to go into family charts, for any reason. It should always be avoided. If you do not have a treatment relationship with someone, you shouldn't be in their chart (excluding educational / research usage). If a family member runs out of a med, of course it would be easy to just go in the chart and write a script. Instead, I walk down to GIM and get someone to do it. In an emergency, I've called in a script for a few pills and emailed the family member's PCP to put a note in the chart. Most of the time, nothing bad will happen if you go into charts -- but it can and will, and is best avoided.

We've had a situation where husband tells physician wife it's OK to go into chart to look something up. Inadvertently, ends up seeing some documentation about marital infidelity -- husband assumed it would be "hidden" in a note and was in the past, and it was in the social history. Huge problem. Super bad.

There is always a better way. This is a short cut. Don't take it.

 

[Perrotfish]

There is always a better way. This is a short cut. Don't take it.

No one is disagreeing about this. The question is what is a reasonable response from the program when someone takes the short cut anyway. My opinion is that is should depend on what the patient says when you ask them about the resident accessing their record

"I asked him to do it and we are both so sorry, we didn't realize what a big deal this was' --> written counseling, with probation for a second offense and dismissal for a third. This is not a HIPAA breach and shouldn't trigger a career maiming/ruing response for a first offense.
"I didn't ask him to do this and this is part of a pattern of abuse and harassment' --> he's fired

This is a do no harm situation. If the patient you are theoretically protecting considers your response a catastrophe for their life then I think the response is wrong.

 

[Crayola227]

Getting back to OP's question about how this looks for employers, it would seem that it might depend. You can see from the sampling of responses here. If it came by my desk, and I really was buying the story that the wife really didn't take issue, and I probably would, I probably wouldn't *not* hire them as a result. That said, where does this put them relative to other potential employees with no such concern? The back of my mind would indeed worry that perhaps this is a sign of other issues dotting i's and crossing t's. Which I tend not to be obsessed about, however in a hiring position I probably strongly feel I have to do what's best for the institution, and I would not want to let cutting someone a break sway me towards hiring them.

So for me, and probably others, not a deal breaker, but nor does it help you.

OTOH, you can see there are a lot of people who feel strongly quite differently. And I think just the sort of people that aren't likely to cut you a break on this, that's just the sort of attitude you find in admin types.

I would hope that at least with some time and actual employment experience, this incident will have less and less of an effect on what jobs you're able to land. I doubt it's career-ending but in the short term could be more of an issue than long term, I would hope.

 

[hello1234!]

It shouldn’t matter if the patient is your wife, your sister, a celebrity, your friend, every pt is entitled to privacy under HIPAA. Healthcare workers can and do get fired for looking under a patient’s chart, no matter who that pt is, without there being a business/educational reason to be in the chart.

 

[candbgirl]

“At a professional level, (yes I am only a rising M3 but I was an RN before medical school) yes I do absolutely ask the patient if it is okay to proceed with whatever I was going to do with them when I walk into the room and they have family or visitors there. 100% of the time if they are at all responsive.”

THIS. Every time .

 

[Crayola227]

Frankly I think the above approach is a waste of time. I used to do it too, but then it seems to make everyone in the room super uncomfortable, because it puts the patient on the spot in front of the family, it heightens anxiety about what will be talked about for everyone in the room, and frankly it's rare that I've had patients then opt to send the family out of the room. In fact, I've had patients tell me as much about the above, and one-on-one admit that they did want the family out of the room but they weren't going to say so in front of them. Nevermind when you ask the question and it's clear now to you, the family, that the patient doesn't want them there, and just won't say as much, going as far as to insist they stay now. Great way to start a visit.

If I think there is a reason to discuss something alone with a patient, then I just ask to speak alone with the patient, and I send the family out of the room. This is where asking that question has more net value. If alone, not in front of the family, they want the family in/out of the room, then I feel I can trust that a little more to reflect the patient's actual wishes. Sure, the patient might still feel obligated to let them in. But I know the answer given isn't just because the family is in the room.

I was taught that while yes, it would be great to elicit this from patients every time, in practice it only really makes sense to ask with the family already out of the room, and it isn't always practical to send the family out of the room first every time. In which case posing the question like this is also itself a sort of symbolic awkward time waster for most purposes.

 

[Crayola227]

Although, sometimes I do say something like, "It might be best to start this visit with just me and Mr. Jones," and then I can try to read the patient's response. I've introduced to the family that sending them out is my idea, which gives the patient an out if they seem to prefer that based on body language (and hopefully the verbiage doesn't freak everyone out that I'm about to deliver a cancer diagnosis, if that isn't what I'm going to do). If the patient/family seem quick to have them ditch the room, that's an answer. If the patient insists the family stays, it's one as well. This isn't as ideal as sending the family out and then asking, but personally I've found it more useful than the blunt question to the patient in front of the family.

It's interesting to me how often no matter your approach (mine or the more direct ones people have mentioned) that it seems like the family is relieved to be able to leave the room. Basically, the reverse of the patient wanting privacy from the family, but the family not wanting to be part of the process perhaps to the extent the patient wants. Or the family didn't really know how to say they don't want to be there.

This is also another reason to send the family out unless the patient strongly objects. It might let everyone off the hook. It will then be up to patient and family to work out amongst themselves boundaries regarding the sharing of info, basically now as the physician you are no longer the go-between. This has pluses and minuses obviously.

 

[rokshana]

There is the classic crayola...judgy post and then the back pedal...just editnpr delete the 1st post and then you don’t need to backpedal...

Have asked the question in a simple straightforward way and had some say they want family leave and others that have said they were fine with it...it’s how you approach it that makes a difference.