Risk Management

Confidentiality in Oral Communications (Part 2)

Paul Weber, JD, OMIC Risk Manager

Digest, Spring 1999

In the last issue of the Digest, I addressed breaches of patient confidentiality in oral communications with relatives. (If you did not receive a copy of the winter Digest, please call (800) 562-6642.) In this issue, I will address the risks of improper communication with other third parties such as attorneys, payors and other health care providers. By necessity, this article is limited to the general principles of confidentiality. Many states have detailed and specific statutes regulating this area of patient rights. You may obtain state-specific information by contacting your state medical society.

Can I talk with a patient’s attorney?

A  It is quite common for a patient’s attorney to call to discuss the patient’s care and treatment in relation to litigation involving the patient. This care might be related to an injury arising from an accident or it could involve the care of another provider who is being sued by the patient. The patient’s attorney may try to persuade you that an “informal” conversation will avoid the need for a lengthy deposition. If this occurs, call OMIC for advice. You may think the situation is benign but that may be wishful thinking. Understand that these conversations are discretionary. You are not obliged to spend time helping a patient’s lawyer understand your care and clinical treatment. However, after consulting with your malpractice carrier, you may have a conversation with the attorney once you have obtained a signed authorization from the patient specifically giving you permission to talk with the attorney. This would be in addition to an authorization to release the patient’s written medical record to the attorney. You may charge an attorney when holding these conversations since you are acting as a consultant; however, be aware that your charges and any matters discussed may be examined in a subsequent deposition either by the patient’s attorney or the lawyers for the other side.

 Must I comply with a subpoena for a deposition?

A subpoena is a court order stating that you must provide oral testimony under oath on a specific date and time or face sanctions by the court. You must comply with a subpoena and answer any questions about your care and the medical record. Whenever you receive a subpoena, call OMIC for advice. Often, the date and time of the deposition can be negotiated. In certain states, you may demand “reasonable compensation” for your time (see above).

Q  Can I talk with other health care providers?

A  Discussions with other health care providers for purposes of diagnosis and treatment are allowed and oftentimes necessary for continuity of patient care. Most states allow such disclosures without a signed authorization by the patient; however, often patients sign a statement on the intake information sheet authorizing disclosures with other health care providers. These communications are discretionary and under some circumstances, the ophthalmologist may need a separate authorization to discuss extremely confidential information such as AIDS treatment, HIV status or treatment of drug or alcohol abuse.

Q  Can I talk with third party payors?

A  Most states allow disclosure with third party payors only to the extent necessary to allow responsibility for payment to be determined or to secure payment from insurers, health plans, government entities, or others responsible for payment of health care services. Again, often patients sign a statement on the intake information sheet authorizing limited disclosures with third party payors.

Q  How do I verify the identity of a caller inquiring about a patient’s condition?

Every medical office should develop a protocol for verifying a caller’s identity. It should be flexible enough to accommodate different scenarios. Here are a few possibilities:

Patient: If a patient is calling to verify an appointment, simply ask for his or her phone number. If the patient is calling to refill a prescription, obtain more personal information such as date of birth and SSN.

Third Party Payor: Ask for the patient’s date of birth, SSN, health plan number and other patient-specific information that the payor should have access to. Additionally, take the caller’s name, phone number and title. If you are suspicious, hang up and call the person back.

Other health care provider: If you have any suspicions, ask for the patient’s date of birth, SSN or other patient-identifying information.

If you have a risk management question or subject that you would like addressed in this column, please contact Paul Weber at (800) 562-6642, ext. 603 or pweber@omic.com or fax your question or comment to the Risk Management Hotline at (800) 562-6642, ext. 4.

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