Risk Management

Confidentiality and Malpractice Claims

Anne M. Menke, RN, PhD OMIC Risk Manager

Digest, Winter 2005

Physicians often have questions about sharing protected health information (PHI) with their professional liability carrier or an attorney during the investigation and litigation of a medical malpractice incident, claim, or lawsuit. The patient’s right to confidentiality, and the treating ophthalmologist’s obligation to protect it, are due to physician-patient privilege, the patient’s constitutional right to privacy, the patient’s right to privacy of medical information under state law and HIPAA, and the physician’s professional obligation to maintain the secrecy of patient confidences. While the physical records belong to the ophthalmologist, the patient at times both controls the use and disclosure of the information contained in the record and is entitled to know to whom PHI is disclosed. Some disclosures are mandatory (e.g., reporting obligations for communicable diseases), while others are permitted without patient notification or authorization (e.g., for treatment, payment, healthcare operations under HIPAA).

My patient experienced a poor outcome, and I’m concerned I might be sued. Can I disclose PHI to OMIC or my attorney?

As the treating physician, you have a duty to protect the confidentiality of the patient’s PHI. You can, however, disclose PHI to your professional liability carrier or personal attorney without asking the patient for authorization or accounting for it under HIPAA, since this disclosure is considered to be part of healthcare operations. You need to enter into a business associate agreement with your carrier and attorney to ensure that they will protect the confidentiality of PHI (OMIC has such an agreement with every policyholder). The minimum necessary rule applies, but the entire medical record, including billing documents, is usually needed to review the patient’s care. Under state law, such disclosure is generally allowed without authorization in anticipation of litigation in order to prepare the physician’s defense.

OMIC encourages policyholders to call our Risk Manager for help in these situations and considers these calls confidential: the Risk Manager will not share any information about an insured with the Claims or Underwriting staff without the insured’s approval. OMIC has developed detailed guidelines for “Responding to Unanticipated Outcomes,” which can be downloaded from the Risk Management Recom- mendations section of the OMIC web site (www.omic.com).

Q  An attorney contacted me to discuss a patient of mine who is suing (or considering suing) another physician. Can I talk to my patient’s attorney?

A  As the patient’s current or prior treating physician, you have a duty to protect PHI and would need the patient’s authorization to discuss your care. In this situation, the patient’s attorney usually obtains it for you. With the patient’s written authorization, you can both release your records and discuss your care if you want to. There is, however, no legal requirement to discuss your care unless there is a court order or valid subpoena. Some physicians who have discussed their care informally with a patient’s attorney have ended up being named as a defendant in the malpractice claim. Others have unwittingly jeopardized the defense of their partners or colleagues. For these reasons, contact OMIC before agreeing to talk to the patient’s attorney. In some cases, you will be assigned an attorney to protect your interests.

Q  A professional liability carrier (or attorney) called me to discuss a patient. The carrier (or attorney) represents another physician. Can I talk to the other physician’s carrier (or attorney)?

As the patient’s current or prior treating physician, you have a duty to protect PHI. You would need to both obtain the patient’s authorization to discuss your care and account for it, since discussing your care with the attorney or carrier of another physician is not considered a healthcare operation for you. If either you, the attorney, or carrier obtain the patient’s written authorization, you can release your records. There is, however, no legal requirement to discuss your care unless there is a court order or valid subpoena. Without the patient’s written authorization, disclosure of PHI may not be lawful. Contact OMIC or your own attorney if you need advice.

For information on testifying about care rendered to a patient who is suing another doctor, or about protecting PHI when hired as a medical expert, please review “Confidentiality During Litigation,” available on the OMIC web site (www.omic.com) in the Risk Management Recommendations section. OMIC policyholders who have questions or concerns about disclosure of PHI may contact the Risk Manager at (800) 562-6642, extension 651.

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