Risk Management

Confidentiality in Oral Communications (Part 1)

Paul Weber, JD, OMIC Risk Manager

Digest, Winter, 1999

Breaches of patient confidentiality in oral communications are frequently ignored. As a general rule, all patient medical information is confidential, whether communicated in writing or orally, and should not be released to anyone other than the patient without the patient’s signed authorization. This column addresses general principles concerning patient confidentiality. Many states have specific and detailed statutes regulating this area of patient rights. Contact your state medical society for this information.

Q  What is the risk if a patient overhears staff conversations?

A  In a self-assessment survey of more than 800 OMIC insureds, 37% acknowledged that patients could overhear staff conversations and telephone calls with other patients in their office. Many ophthalmology practices do not have private areas set aside for patient communications or back offices for billing and insurance personnel. It is not unusual for patients checking in or scheduling appointments at the front desk to overhear conversations about other patients’ diagnoses and laboratory findings or billing and collection problems. There are no simple solutions or remedies to these types of breaches, but office staff should be educated to the fact that violating a patient’s right to confidentiality can expose the practice to litigation or a report to the state medical board. Staff should understand that conversations regarding patients’ conditions and treatments should never be carried on where they may be overheard by others. Set aside a separate room or private area where staff may address confidential issues with patients. Remind staff members to speak softly if they may be overheard.

Q  Can I speak with relatives about a patient’s care?

A  In a bona fide emergency, medical personnel may and should give information to relatives who are assisting the patient. In other circumstances, the general rule is that an adult patient’s spouse, child, grandchild, niece, mother, father, etc., has no right to any medical information about the patient unless the relative has been appoint-ed legal guardian or has been expressly authorized by the patient to receive this information. One exception is when a relative accompanies the patient to the office and is present during the examination or meeting with the physician. Even then, however, the ophthalmologist or staff should confirm with the patient that it is okay to discuss clinical matters in the presence of the relative and document in the patient’s chart that such consent was given.

It is permissible to discuss treatment with a relative over the phone if the patient is present when the relative calls. Following the conversation, the ophthalmologist should document that the patient gave consent for the discussion to take place. If the patient is not present when the relative calls, an authorization (consent) specifically stating that oral communications are permitted with this relative should be signed by the patient. OMIC has designed a model authorization form for this purpose. Please contact the Risk Management Department at (800) 562-6642, extension 4 or fax your request to (415) 771-11810.

Can I talk with a minor patient’s parent or legal guardian?

 Under most circumstances, parents have a right to and must receive medical information about their minor child. (Some limited exceptions may apply to terminating a pregnancy, treatment of sexually transmitted diseases, etc.) If parents are divorced, a parent must have “legal” custody to receive medical information about the minor and verify in writing that he or she has such custody. Usually it is permissible to give foster parents medical information; however, stepparents do not have the right to their stepchild’s medical information unless they have been designated a legal guardian.

Q  Can I leave messages on an answering machine or with someone other than the patient?

A  When calling a patient’s home, the patient may not be there and staff will encounter an answering machine or someone else offering to take a message. If calling a patient’s workplace, you may reach a secretary or voice mail. Under these circumstances, it is generally all right to confirm appointment information since not leaving such information may actually create more problems such as missed appointments. Medical information (diagnoses, test results, scheduled tests, etc.) should not be left on answer-ing machines or with another party. Ask the patient to call the office.

In the next issue of the Digest, the Risk Management Hotline will address when it is proper to talk with attorneys, other health care providers and third party payors about a patient’s medical history.

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