Probation due to HIPAA violation

[Crayola227]

Whatever. It's a waste of time to come out and ask if they want the family there in front of the family, in my opinion. It's hardly back pedaling to say that yes, patient privacy is important and sometimes you need to ask the family to leave the room. If you think the encounter would be better with them out, just ask them to leave. Don't just leave it up to the patient to speak up in any case.

That said, it doesn't mean there isn't a place to try to elicit the patient's wishes. But I find there is a more or less effective way to do it.

I don't see the backpedaling there, but maybe you do. I didn't delete the first post because I stand by it, and no one "called me out" I just decided it didn't express all my feelings on the topic and how I address it.

Still don't see how I backpedaled that I don't ask the patient if they want the family there or not point blank in front of the family.

Guess I'm putting you back on ignore. Which I actually think is a shame. Now that's backpedaling.

Don't really see what your comment about me adds besides slamming on me directly.

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[LucidSplash]

Here’s a question. Do any of the “not a big deal/too draconian” people know how much a hospital can be fined for each HIPAA violation? No? How about the cost of some of the settlements for data breaches? Did you bother to look it up? Go ahead, I’ll wait.

So for those of you playing at home but too lazy to google, for institutions, fines can be up to $50k for each instance with a maximum of $1.5 million per record per year. And the settlements can be astronomical if multiple records were breached.

Hospitals take a no-mercy stance toward “not following the rules” of HIPAA, even in the OP’s type of situation because the federal government has a no-mercy stance on this stuff. The federal government sets the rules. The hospital has to follow them or it can hit the bottom line fast. If it has a breach and doesn’t take action to rectify it and/or deal with the person who caused it, even bigger problems.

So people complaining about the hospital making a big deal out of nothing, take it up with the federal government. They won’t give a **** about your opinion, but it’s tough to blame the hospital for being draconian with so much money at stake.

 

[IMGASMD]

I know/can see this discussion is fluid and everyone keeps moving the goal post. The first question and the most important question for the OP is how will this impact his career? And/or anything he can do to salvage it. (GET A LAWYER, OP. And see if you can get away with a warning or make probation fall off when you complete your residency, after seeing SDH’s response, is my vote. You will have the money soon, and if any of these people sitting on your disciplinary board, you need someone who can speak legalese.)

As the last few posters have pointed out, the enforcement is up to the hospital. The punishment of HIPAA violation is hospital dependent. There is no “universal” or “federal” protocols. TBH, I could careless how this impacts the hospitals or administrations bottom line.

 

[VA Hopeful Dr]

TBH, I could careless how this impacts the hospitals or administrations bottom line.

And that's fine, but they care and they are the ones who do the hiring.

 

[Perrotfish]

Here’s a question. Do any of the “not a big deal/too draconian” people know how much a hospital can be fined for each HIPAA violation? No? How about the cost of some of the settlements for data breaches? Did you bother to look it up? Go ahead, I’ll wait.

So for those of you playing at home but too lazy to google, for institutions, fines can be up to $50k for each instance with a maximum of $1.5 million per record per year. And the settlements can be astronomical if multiple records were breached.

Hospitals take a no-mercy stance toward “not following the rules” of HIPAA, even in the OP’s type of situation because the federal government has a no-mercy stance on this stuff. The federal government sets the rules. The hospital has to follow them or it can hit the bottom line fast. If it has a breach and doesn’t take action to rectify it and/or deal with the person who caused it, even bigger problems.

So people complaining about the hospital making a big deal out of nothing, take it up with the federal government. They won’t give a **** about your opinion, but it’s tough to blame the hospital for being draconian with so much money at stake.

Again, THE OP DID NOT VIOLATE HIPAA. Everything he did was completely legal. He followed the rules of HIPAA. The federal government has nothing against anything he did. When hospitals make up draconian policies they like to blame it government policies that they assume you haven't read. Read the policies. The joint commission isn't the reason you can't have drinks at the nurses station, and HIPAA isn't the reason that your spouse can't ask you to look up her test results.

There are, again, other good reasons not to let hospital employees access their family members' charts. It is reasonable to have policies against it. However if their family members consented to the access, including by implied consent (i.e. she was sitting there and didn't object), then it wasn't a HIPAA violation. If its not a HIPAA violation then hospitals should have more nuance to their policy than firing/probation for a first offense.

 

[VA Hopeful Dr]

Again, THE OP DID NOT VIOLATE HIPAA. Everything he did was completely legal. He followed the rules of HIPAA. The federal government has nothing against anything he did. When hospitals make up draconian policies they like to blame it government policies that they assume you haven't read. Read the policies. The joint commission isn't the reason you can't have drinks at the nurses station, and HIPAA isn't the reason that your spouse can't ask you to look up her test results.

There are, again, other good reasons not to let hospital employees access their family members' charts, but if their family members consented to the access, including by implied consent (i.e. she was sitting there and didn't object), then it wasn't a HIPAA violation. If its not a HIPAA violation then hospitals should have more nuance to their policy than ruining careers for a first offense.

Saying it in big bold letters doesn't make it true.

 

[Perrotfish]

Saying it in big bold letters doesn't make it true.

No, the fact that that's what the law says makes it true.

Also I would bet his program knows it. Do you think they reported the HIPAA violation and paid the fine? They know as well as he does that if his wife asked for the record to be accessed then no violation occurred.

 

[Perrotfish]

I know/can see this discussion is fluid and everyone keeps moving the goal post. The first question and the most important question for the OP is how will this impact his career? And/or anything he can do to salvage it. (GET A LAWYER, OP. And see if you can get away with a warning or make probation fall off when you complete your residency, after seeing SDH’s response, is my vote. You will have the money soon, and if any of these people sitting on your disciplinary board, you need someone who can speak legalese.)

I don't think there is much for a lawyer to do here The program doesn't even need to have a written policy against accessing your family members' charts to justify probation, they just need to argue that its a breech of professionalism. I think this thread establishes that the ACGME wouldn't overturn a PD's opinion on that. I think he's stuck taking his punishment and moving on. Thankfully it looks like the OP is moving onto employment rather than fellowship, so this is unlikely to do much damage to his career.

Therefore the discussion has moved on to a discussion between attending, about what to do for other programs dealing with similar situations in the future.

 

[LucidSplash]

No, the fact that that's what the law says makes it true.

Also I would bet his program knows it. Do you think they reported the HIPAA violation and paid the fine? They know as well as he does that if his wife asked for the record to be accessed then no violation occurred.

Its required to be in writing because if the OP’s wife changes her mind at any point, then the hospital couldn’t prove the OP had consent. I see that you consider the verbal vs written consent issue to be a non-issue, but the hospital makes policy on the basis of the whole population, not just this one guy. So they have be consistent about how they enforce the policy.

The guy screwed up. The policy is the policy and requires written consent. If the government came knocking about this, they’d say the same.

 

[VA Hopeful Dr]

No, the fact that that's what the law says makes it true.

Also I would bet his program knows it. Do you think they reported the HIPAA violation and paid the fine? They know as well as he does that if his wife asked for the record to be accessed then no violation occurred.

You willing to bet 50k an never being hired again as a doctor on that?

 

[LucidSplash]

I know/can see this discussion is fluid and everyone keeps moving the goal post. The first question and the most important question for the OP is how will this impact his career? And/or anything he can do to salvage it. (GET A LAWYER, OP. And see if you can get away with a warning or make probation fall off when you complete your residency, after seeing SDH’s response, is my vote. You will have the money soon, and if any of these people sitting on your disciplinary board, you need someone who can speak legalese.)

As the last few posters have pointed out, the enforcement is up to the hospital. The punishment of HIPPA violation is hospital dependent. There is no “universal” or “federal” protocols. TBH, I could careless how this impacts the hospitals or administrations bottom line.

You will when some day the hospital having a good or bad bottom line affects your job.

 

[Perrotfish]

Its required to be in writing because if the OP’s wife changes her mind at any point, then the hospital couldn’t prove the OP had consent.

You willing to bet 50k an never being hired again as a doctor on that?

Again, you both bet 50K and your license that this is true every time you don't require written consent for someone to bring their spouse into clinic with them. If any of your clinic patients came back the next day and said that they asked you to get their spouse out of the room before discussing their medical history, then you would have no way to prove that they didn't actually do that and you actually had their implied consent. Its exactly the same thing.

The hospital has a policy in place because they are worried about people accessing their spouses' charts without authorization, so there is no way to allow them to access their spouses' charts WITH authorization without setting off electronic alarm bells. Its an easier and better policy just to say that no one should do it at all. However, if the spouse says that the physician had her consent to look in her chart then it wasn't actually a HIPAA violation and doesn't need a draconian response for a first offense.

 

[IMGASMD]

You willing to bet 50k an never being hired again as a doctor on that?

I am going to ask my lawyer.

 

[IMGASMD]

You will when some day the hospital having a good or bad bottom line affects your job.

I am stubborn, maybe stupid, according to my SO. I will resist corporate America as long as I can, and not abandon common sense for as long as I can. I may just move to the middle of nowhere and open a cash for treatment business.

Assume he did have permission, verbal non coerced and/or an urgent request by his wife, then there is certainly no need for any punishment? Or there should, just because he looked in the chart?

There is some nuance here other than the hospital “may” get fined. The debate isn’t should he or should he not looked into the chart. What is the proper punishment? Fire him. He should be excited that he didn’t get fired?


If looking into a chart with permission gets more punishment than taking caring of patients while intoxicated..... there is something wrong and VERY wrong with the world that I am in.

OP get a lawyer. I hope you find a way to invoke something that will help your cause.

Edit: TMI.

 

[IMGASMD]

I don't think there is much for a lawyer to do here The program doesn't even need to have a written policy against accessing your family members' charts to justify probation, they just need to argue that its a breech of professionalism. I think this thread establishes that the ACGME wouldn't overturn a PD's opinion on that. I think he's stuck taking his punishment and moving on. Thankfully it looks like the OP is moving onto employment rather than fellowship, so this is unlikely to do much damage to his career.

Therefore the discussion has moved on to a discussion between attending, about what to do for other programs dealing with similar situations in the future.

Definition of professionalism can be debated. I certainly understand the PD and medical education officer will/may have a final say.

And if violating professionalism is what has been cried here, violating HIPAA?(as you have pointed out may not apply). Then there should be a discussion to be had.

Edit: thanks

 

[Apollyon]

Dude - HIPAA. Health Insurance Portability and Accountability Act. HIPAA.

 

[VA Hopeful Dr]

Again, you both bet 50K and your license that this is true every time you don't require written consent for someone to bring their spouse into clinic with them. If any of your clinic patients came back the next day and said that they asked you to get their spouse out of the room before discussing their medical history, then you would have no way to prove that they didn't actually do that and you actually had their implied consent. Its exactly the same thing.

The hospital has a policy in place because they are worried about people accessing their spouses' charts without authorization, so there is no way to allow them to access their spouses' charts WITH authorization without setting off electronic alarm bells. Its an easier and better policy just to say that no one should do it at all. However, if the spouse says that the physician had her consent to look in her chart then it wasn't actually a HIPAA violation and doesn't need a draconian response for a first offense.

Except you don't as I've already addressed.

 

[Perrotfish]

Except you don't as I've already addressed.

So making sure I understand your argument:

When you bring a patient's spouse into the room without written consent, the patient could easily come back the next week and says that they asked for their spouse to leave and you violated HIPAA by having them there. However you feel you feel that you will not be guilty of a HIPAA violation because you will disagree with that patient and the government will believe you.

However when the OPs spouse swears that she DID want her chart accessed, it still IS a HIPAA violation because, in just the case of the physicians spouse, we assume that the patient is lying about her consent unless she can produce written documentation to support her statement? And if the government found out about it they would assume the chart was accessed without her permission, regardless of what she says?

Is that right? I am really trying to understand how you are seeing what the OP did as a HIPAA violation while you see your practice of letting your patients bring spouses into the room as not a violation.

 

[VA Hopeful Dr]

So making sure I understand your argument:

When you bring a patient's spouse into the room without written consent, the patient could easily come back the next week and says that they asked for their spouse to leave and you violated HIPAA by having them there. However you feel you feel that you will not be guilty of a HIPAA violation because you will disagree with that patient and the government will believe you.

However when the OPs spouse swears that she DID want her chart accessed, it still IS a HIPAA violation because, in just the case of the physicians spouse, we assume that the patient is lying about her consent unless she can produce written documentation to support her statement? And if the government found out about it they would assume the chart was accessed without her permission, regardless of what she says?

Is that right? I am really trying to understand how you are seeing what the OP did as a HIPAA violation while you see your practice of letting your patients bring spouses into the room as not a violation.

For the same reason that yesterday I was able to sign as a witness for a patient's healthcare power of attorney but I could not do the same for my spouse.

 

[Perrotfish]

Assume he did have permission, verbal non coerced and/or an urgent request by his wife, then there is certainly no need for any punishment? Or there should, just because he looked in the chart?

Well there still needs to be some kind of punishment, at least for repeat infractions. At a minimum accessing your spouses chart is like exiting the building through the 'alarm will sound' fire door. Yes its faster for you but dealing with the alarms you set off eats up a lot of time for other people.

There are other issues as well. When you disclose healthcare information to your spouse you are in that moment technically acting as your spouse's treating provider, which is unethical. If you are a trainee you are technically making your supervising attending her treating provider, and putting him on the line for the correct interpretation of her lab results, which is unprofessional. Also as aPD brought up your spouse might really only be giving you consent to discuss part of their medical record, but EMRs aren't really designed for you to access just that part of the record, so you might see something you shouldn't see.

There are lots of issues here other than HIPAA and you shouldn't look at a family member's chart. However I don't think any of them warrants probation or firing for a first offense if you had your family member's permission to access the chart.

 

[VA Hopeful Dr]

Well there still needs to be some kind of punishment, at least for repeat infractions. At a minimum accessing your spouses chart is like exiting the building through the 'alarm will sound' fire door. Yes its faster for you but dealing with the alarms you set off eats up a lot of time for other people.

There are other issues as well. When you disclose healthcare information to your spouse you are in that moment technically acting as your spouse's treating provider, which is unethical. If you are a trainee you are technically making your supervising attending her treating provider, and putting him on the line for the correct interpretation of her lab results, which is unprofessional. Also as aPD brought up your spouse might really only be giving you consent to discuss part of their medical record, but EMRs aren't really designed for you to access just that part of the record, so you might see something you shouldn't see.

There are lots of issues here other than HIPAA and you shouldn't look at a family member's chart. However I don't think any of them warrants probation or firing for a first offense if you had your family member's permission to access the chart.

I think it depends on what is meant by probation.

I was put on probation during residency but was told that so long as I never got in trouble again it wouldn't go on my permanent record (or whatever) and so wouldn't have to report it to anyone post-residency. On the other hand, if I did get in trouble again this was enough of a warning that they could terminate me. I clearly didn't ever toe the line again and so its never been an issue.

 

[IMGASMD]

Well there still needs to be some kind of punishment, at least for repeat infractions. At a minimum accessing your spouses chart is like exiting the building through the 'alarm will sound' fire door. Yes its faster for you but dealing with the alarms you set off eats up a lot of time for other people.

.

Then say that, act on that. On the program level, hospital level or even here. I can certainly understand more if the OP was cited for “unprofessional conduct” due to violation of “hospital protocols” than unprofessionalism due to violation of “federal law.” If it’s the “only” offense that OP has, then the punishment shouldn’t be permanent record in his file.

The very first response I gave was how the pendulum has swung too far without common sense or consideration. I just don’t appreciate somehow the thread became a discussion for the justification of how “OP got off easy.”

 

[IMGASMD]

I think it depends on what is meant by probation.

I was put on probation during residency but was told that so long as I never got in trouble again it wouldn't go on my permanent record (or whatever) and so wouldn't have to report it to anyone post-residency. On the other hand, if I did get in trouble again this was enough of a warning that they could terminate me. I clearly didn't ever toe the line again and so its never been an issue.

Only if this has been m the option that op had been presented, I would have shut up, take it then move on.

 

[clausewitz2]

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

Y'know, lawyers have a term of art for someone involved in events recounting what happened and speaking to their state of mind after the fact.

IIRC it's something like "eyewitness testimony?'

 

[VA Hopeful Dr]

Y'know, lawyers have a term of art for someone involved in events recounting what happened and speaking to their state of mind after the fact.

IIRC it's something like "eyewitness testimony?'

Well ****, why didn't anyone tell me this?

I wish I could go back in time to when my dad died and tell the probate judge that right before he died he told me that he wanted me to have everything in his will instead of splitting it with my sister.

 

[clausewitz2]

Well ****, why didn't anyone tell me this?

I wish I could go back in time to when my dad died and tell the probate judge that right before he died he told me that he wanted me to have everything in his will instead of splitting it with my sister.

Lawyers of course want everything written out because it makes their job much easier. This is because testimony like this is always vulnerable to being disputed by someone else who was involved in the events. He-said-she-said is problematic because you have to figure out who is more credible if they contradict each other.

If you dad died intestate and you and your sister and all the other heirs-at-law all agreed that he said he wanted you to have everything, that would absolutely be dispositive. In some states that would be enough to satisfy whoever was appointed executor/administrator of the estate for sure. That is much closer to the situation legally with OP.

Granted, though, that his employer clearly has a policy against this that he obviously violated. If they require written consent they require written consent. But that is something quite apart from what constitutes evidence.

 

[VA Hopeful Dr]

Lawyers of course want everything written out because it makes their job much easier. This is because testimony like this is always vulnerable to being disputed by someone else who was involved in the events. He-said-she-said is problematic because you have to figure out who is more credible if they contradict each other.

If you dad died intestate and you and your sister and all the other heirs-at-law all agreed that he said he wanted you to have everything, that would absolutely be dispositive. In some states that would be enough to satisfy whoever was appointed executor/administrator of the estate for sure. That is much closer to the situation legally with OP.

Granted, though, that his employer clearly has a policy against this that he obviously violated. If they require written consent they require written consent. But that is something quite apart from what constitutes evidence.

Exactly the problem with verbal statements, everyone has to agree and you run the risk of people changing their minds later.

 

[clausewitz2]

Exactly the problem with verbal statements, everyone has to agree and you run the risk of people changing their minds later.

I agree. That's why you get them to turn it into an affidavit so they can't contradict themselves freely. My point is having everyone involved telling the same exculpatory story is not legally worthless just because there wasn't a signed copy of Form 23A(b) on file in advance. The old saw about "if it wasn't written down it didn't happen" is simply false.

 

[Merely]

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.

LOL

 

[Merely]

The OP accessed his wife’s record at work. The director of his department should go up to him and say “hey bro next time don’t access anyones record without written consent.” He will then say “ok boss sorry about that, you know how wives can be” then the boss will say “yeah no prob bud just don’t want you to get in trouble” BOOM. DONE. Move on...

 

[IMGASMD]

The OP accessed his wife’s record at work. The director of his department should go up to him and say “hey bro next time don’t access anyones record without written consent.” He will then say “ok boss sorry about that, you know how wives can be” then the boss will say “yeah no prob bud just don’t want you to get in trouble” BOOM. DONE. Move on...

Then we wouldn’t be 130 posts in with any of these colorful discussions.

 

[NotAProgDirector]

I think it depends on what is meant by probation.

I was put on probation during residency but was told that so long as I never got in trouble again it wouldn't go on my permanent record (or whatever) and so wouldn't have to report it to anyone post-residency. On the other hand, if I did get in trouble again this was enough of a warning that they could terminate me. I clearly didn't ever toe the line again and so its never been an issue.

I think we might disagree on what "toe the line" means, but I fully agree with this. "Probation" doesn't have any official meaning that I know of. I use:
Remediation = your performance is below standards, you have a plan for improvement, and we will reassess. You are headed towards termination if your performance does not improve.
Probation = Some aspect of your performance was unacceptable. Should it happen again, you will be fired immediately. This is your only warning.

But this is fluid, and different programs may define them differently.

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.

I wouldn't give the resident three strikes. This is a "you are on probation, if it happens again you get fired" situation in my opinion. Should be super easy not to access records of people you're not taking care of, shouldn't require any ramp up period. That's what sounds like happened to the OP. Whether or not the "probation" is reportable will be institution dependent.

 

[Crayola227]

Here’s a question. Do any of the “not a big deal/too draconian” people know how much a hospital can be fined for each HIPAA violation? No? How about the cost of some of the settlements for data breaches? Did you bother to look it up? Go ahead, I’ll wait.

So for those of you playing at home but too lazy to google, for institutions, fines can be up to $50k for each instance with a maximum of $1.5 million per record per year. And the settlements can be astronomical if multiple records were breached.

Hospitals take a no-mercy stance toward “not following the rules” of HIPAA, even in the OP’s type of situation because the federal government has a no-mercy stance on this stuff. The federal government sets the rules. The hospital has to follow them or it can hit the bottom line fast. If it has a breach and doesn’t take action to rectify it and/or deal with the person who caused it, even bigger problems.

So people complaining about the hospital making a big deal out of nothing, take it up with the federal government. They won’t give a **** about your opinion, but it’s tough to blame the hospital for being draconian with so much money at stake.

Yes I looked it up. As I mentioned, most complaints go nowhere, and it would seem, especially ones where the "offended party" takes no issue. That said, yes, when there is policing and penalty it is very expensive. It's a low risk very bad outcome scenario for hospitals, so it makes sense that they take the issue very seriously.

It's not clear to me that in this particular instance the government would rape the hospital over this. But hospital policy is constructed to prevent any and all such outcomes. It's a shame because I don't know that OP was actually acting unethically or even violating HIPAA per the law, but as I said, policy is policy.

 

[Perrotfish]

I wouldn't give the resident three strikes. This is a "you are on probation, if it happens again you get fired" situation in my opinion. Should be super easy not to access records of people you're not taking care of, shouldn't require any ramp up period. That's what sounds like happened to the OP. Whether or not the "probation" is reportable will be institution dependent.

If probation wasn't reportable I would agree, the problem is that every licesing, credentialing, and (most importantly) fellowship application asks you to disclose probation. Particularly for someone who is even considering fellowship down the line probation can change the course of their career.

I think the only things that should be reportable from training are extensions of training and rotation failures. Attendings and program directors should be able to sit you down and tell you to improve without either harming your career. Until that happens, though, I think its important to reserve the word 'probation' for someone you are really expecting to fire in a few months.

 

[Piebaldi]

If probation wasn't reportable I would agree, the problem is that every licesing, credentialing, and (most importantly) fellowship application asks you to disclose probation. Particularly for someone who is even considering fellowship down the line probation can change the course of their career.

I think the only things that should be reportable from training are extensions of training and rotation failures. Attendings and program directors should be able to sit you down and tell you to improve without either harming your career. Until that happens, though, I think its important to reserve the word 'probation' for someone you are really expecting to fire in a few months.

I agree. Things should really never come to probation - if someone is doing poorly, they really should be given an option to remediate = not reportable and if they can't improve then firing i guess is an option. But this whole thing of probation can potentially destroy a medical career and given the length of time and effort it takes to get there it can be devastating. It's not like other fields where if you are fired you can work in something else. And probabtion can be for a lot of things - the whole professionalism thing for example can be simply bc someone is not liked or they want to get rid of them, etc. Many factors that go into this. Careers should not be destroyed over certain things.

 

[gutonc]

Apropos of this discussion. This banner appeared on our Epic login screen today. It's been there before, then disappeared, but is back again.

 

[Piebaldi]

Apropos of this discussion. This banner appeared on our Epic login screen today. It's been there before, then disappeared, but is back again.
View attachment 266330

Wow interesting. Have never seen that!

 

[gutonc]

Wow interesting. Have never seen that!

I suspect the institution you (and the OP) work in have a similar policy. Perhaps they should be more up front about it.

 

[NotAProgDirector]

If probation wasn't reportable I would agree, the problem is that every licesing, credentialing, and (most importantly) fellowship application asks you to disclose probation. Particularly for someone who is even considering fellowship down the line probation can change the course of their career.

I think the only things that should be reportable from training are extensions of training and rotation failures. Attendings and program directors should be able to sit you down and tell you to improve without either harming your career. Until that happens, though, I think its important to reserve the word 'probation' for someone you are really expecting to fire in a few months.

I think we agree more than we disagree. If I do end up firing a resident for a pattern of behavior, I need to document that they were warned, and using the word "probation" with a clear plan that if it happens again does that. Using "remediation", the other word possible, we have been told might not be strong enough -- that it suggests the resident is being given more time to improve. I usually just use "remediation" with a clear description that with a single further episode, the outcome is immediate termination. Luckily, so far it has not come to that point.

 

[Piebaldi]

I think we agree more than we disagree. If I do end up firing a resident for a pattern of behavior, I need to document that they were warned, and using the word "probation" with a clear plan that if it happens again does that. Using "remediation", the other word possible, we have been told might not be strong enough -- that it suggests the resident is being given more time to improve. I usually just use "remediation" with a clear description that with a single further episode, the outcome is immediate termination. Luckily, so far it has not come to that point.

You seem like a reasonable PD - i wish more PDs were like you. There are some out there that are just - yikes!

 

[vhawk]

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.

What exactly do you mean here by court of law? Who is the person who has standing for this to be some sort of criminal or legal matter? If you are making the point that your wife could change her mind and decide to **** you over, and you would have a hard time proving she is lying, that is fair. But if she genuinely gave you verbal permission and maintains that she did, who is the aggrieved party here? How does this become a legal matter?

 

[vhawk]

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.

Exactly this. I'm reading this whole thread, including a bunch of extremely confident, definitive sounding posts by posters who are very smart and I respect a lot, and the whole time I feel like I'm taking crazy pills because as far as I can see this is in no way a HIPAA violation. It is a really, really bad idea, and could easily violate residency or hospital policy, and could definitely be a fireable offense, but I don't see really any way, as presented (always a risky move to stipulate that the scenario is as OP presents) that this is a HIPAA violation or in any way a legally actionable matter.

 

[vhawk]

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.

Ok good I'm not losing my mind

 

[Raryn]

I suspect the institution you (and the OP) work in have a similar policy. Perhaps they should be more up front about it.

The only part that's variable is some institutions allow you to view your own records and others do not.

 

[gutonc]

The only part that's variable is some institutions allow you to view your own records and others do not.

Yeah, ours backtracked on that one. Used to be no access to any chart at all, even your own via the EMR (had to use the patient portal). Now you can access your own, but that's it. And psych/therapy notes are kept in a different system that only those credentialed for therapy have access to, which alleviates that particular headache.

 

[NotAProgDirector]

Remediation means 'you're at least two steps away from being fired', because you need to be put on true probation before you are fired.

This is purely an institution/program decision. There's no ACGME or legal requirement to be put on probation before being fired. The legal standard is "a notice of deficiencies and opportunity to cure". Whether it's called remediation or probation is arbitrary. We define remediation as an internal/QA process, so if fixed there is no outside reporting. Probation is non-QA, so would be reported even if the resident fixed the issue. That's why I'd label this remediation -- if it doesn't happen again, no one needs to know about it. If there was a more serious issue, or something recurrent, I would call it probation and it would become part of future credentialing requests.

But other institutions might require probation first.

 

[Piebaldi]

This is purely an institution/program decision. There's no ACGME or legal requirement to be put on probation before being fired. The legal standard is "a notice of deficiencies and opportunity to cure". Whether it's called remediation or probation is arbitrary. We define remediation as an internal/QA process, so if fixed there is no outside reporting. Probation is non-QA, so would be reported even if the resident fixed the issue. That's why I'd label this remediation -- if it doesn't happen again, no one needs to know about it. If there was a more serious issue, or something recurrent, I would call it probation and it would become part of future credentialing requests.

But other institutions might require probation first.

Right - I think in this case though, particularly because even as we saw here there are variations in how hospitals deal with certain things and many grays (this is not saying - well this resident beat someone up or had something to do with sexually assaulting someone, etc - things like that are pretty clear in how they would be dealt with at all institutions) - but I think this is more gray. Particularly for a senior resident that is about to graduate - if I was a OP which I am clearly not, I would put them on "remediation" - I am sure OP learned his lesson and won't be doing that again. But putting him on probation seems a bit draconian.

 

[ACSurgeon]

- must be honest and disclose. If you clicked with the chief, reach out and discuss in person or over the phone (wouldn’t in an email).

- talk to a lawyer

- the above isn’t not a HIPPA violation but an employer violation. My employer allows accessing personal and family member records with some guidelines

- I would be surprised if you get denied a medical license anywhere because of this. It’ll be annoying. You’ll need to explain yourself. You might have a few more hoops to jump through and it will likely take more time to get the license, but ultimately shouldn’t prevent you from getting a license.

 

[neoexile]

Hello everyone

I am a 3rd year FM Resident about to be graduating in June. I had a pretty smooth sailing so far and even passed my ABFM board exam. So, earlier in May I got called by our GME director saying I was found to be guilty of HIPAA violation as I had accessed my wife's medical records. At that time, I did say that my wife knew about it and apologized profusely if it was a HIPAA violation. He then said they have a pretty strict hipaa violation policy due to a previous incident and that if I was an attending I would have been directly terminated but since I am a resident they are going to be putting me on probation for hipaa violation until end of my residency. I talked to my PD about it and he said he never had a situation where a resident was on probation for this and could not help in changing my probation to like a warning. Now, I have already signed a contract with another health system to work there back in April. We are currently in the process of credentialing and applying for my state license. I hope anyone can help in answering a few questions I have:
1- Should I inform my current employer or the credentialing dept about this new development?
2- How should I plead my case when I answer yes to the question about being on probation while during residency
3- Will this probation have an effect on my future job prospects?
4- I want to apply for medical license to the states of Ohio, Michigan and Texas as I intend to finally settle in one of those states. Will this probation have an affect on me getting a full unrestricted license.

I know I made a mistake by accessing my wifes record, I am really disappointed in myself and will never repeat such a mistake in the future. I have even stopped my colleagues since then from accessing records they are not taking care of. I hope any of you will help in answering my questions as I am really confused and have no idea how to proceed from here.

NEVER DO THIS. EVER.

For everyone else, this sort of thing is a surefire way to dump 10 years of sacrifice down the drain. Never look at your friend's, family's or someone you know medical record from the EMR. Many hospitals have strict policy to fire someone instantly if they do this and at my institution, this comes from WAY above the program director.

 

[ThoracicGuy]

NEVER DO THIS. EVER.

For everyone else, this sort of thing is a surefire way to dump 10 years of sacrifice down the drain. Never look at your friend's, family's or someone you know medical record from the EMR. Many hospitals have strict policy to fire someone instantly if they do this and at my institution, this comes from WAY above the program director.

Hmm, guess you missed most of the thread.