Medical Ethics for the Boards - PDF

 19 Chapter 4: Confidentiality and Medical Records CONFIDENTIALITY Physicians have a strong professional mandate to maintain the confidential...

 19 Chapter 4: Confidentiality and Medical Records CONFIDENTIALITY Physicians have a strong professional mandate to maintain the confidentiality of patients. Communications between patient and physician are highly privileged and this confiden- tiality can only be violated when there is potential harm to a third party or if there is a court order demanding the information. Medical information cannot be passed to anyone without the direct consent of the patient. Confidentiality also includes keeping a patient’s medical information private even from his friends and family unless the patient expressly says it is okay to release the information. The fact that a patient may have a good relation- ship with his family and friends is absolutely no excuse to assume that the patient wants his medical information passed on to them. I have an excellent relationship with my mother; however, even though I am a doctor (or maybe because of it) she does not want me to know her list of medications. She has no obligation to give me a reason why she does not want me to know which medications she is taking. If I call her doctor and say, “I just want to help mom with her meds. What is she on?” Her physician is supposed to respond, “I’m sorry, but your mother hasn’t authorized me to give you that information. I know you mean well, but I just can’t talk to you about your mother’s medical problems.” For example, a 42-year-old man is hospitalized with chest pain. The patient is awake and alert. His wife comes to you demanding information about the patient, saying that she is his wife. She shows her identification card verifying this. What should you tell her? You cannot release medical information to anyone about a patient unless the patient gives you permission to do so. Although it may seem rude and unreasonable, you must tell the 01 USMLE Ethics txt New.indd 19 13/11/15 1:06 pm  20 Medical Ethics for the Boards patient’s family members that you must ask your patient for permission before you can release his medical information. For example, the wife becomes infuriated and storms off the floor, threatening to sue you. You apologize to the patient for upsetting his wife by not speaking with her about his private medical problems. The patient responds “On the contrary, Doctor, you did great. Although she is still my wife, we are finalizing our divorce and we do not live together. I expect to be divorced and remarried within the next few months. She only wanted information about me to use against me in the divorce proceeding. Thanks for protecting my confidentiality.” RELEASE OF INFORMATION Information transfer between physicians involved in the care of patients is a common occurrence. However, the information can only be transferred if the patient has signed a consent or release form requesting the transfer of information. It is the patient who must sign the consent to release the information, not the health-care provider. This is how the system guarantees that the patient’s medically privileged information only transfers to those people to whom the patient wants it to go. For example, you receive a phone call from another physician who is well known to you in your local community. The physician says that one of your former patients has transferred his care to him and he is asking for a copy of the patient’s medical record. What do you tell him? You should tell another physician requesting information to send you the patient’s signed release form before you send him the information. 01 USMLE Ethics txt New.indd 20 13/11/15 1:06 pm  Chapter 4: Confidentiality and Medical Records 21 GIVE MEDICAL INFORMATION TO THE PATIENT FIRST, NOT THE FAMILY For example, your patient is awaiting the results of a biopsy to tell whether or not she has cancer. Her son calls you and asks you to give him the information because the family is concerned that the bad news will depress his mother. He is sincere and genuine in his concern. What do you tell him? Medical information such as the result of a biopsy must go to the patient first. There is no basis for informing the family and not the patient. It is exactly the opposite: without direct instruction from the patient, the family should not receive the patient’s confidential medical information. Maybe the patient wants her family to know and maybe she doesn’t. It is always the patient’s decision. There is a rare exception in the case of a patient with a psychiatric disturbance in whom to inform if a medical condition might induce a suicide attempt. RELEASE OF INFORMATION TO GOVERNMENTAL ORGANIZATIONS AND THE COURTS For example, an investigator from a local law enforcement agency comes to your office. He shows you proper identification stating that he is a government employee. He is looking for your patient’s immigration status and for his medical condition. What do you tell the investigator? If a member of a law enforcement agency comes to you with a subpoena or a court order that constitutes a search warrant then you must furnish him with the information that he requests. If the investigator does not have a search warrant, then you must refuse him access to the files. You are not under any obligation to make immigration status investi- gations of your patients nor to provide this information to third parties unless it is at the request of the patient. This right of privacy also covers genetic information. You must keep the medical information private from a patient’s co-workers as well. BREAKING CONFIDENTIALITY TO PREVENT HARM TO OTHERS The right of a patient to privacy is not absolute. There are some exceptions as to when confidentiality can be broken in order to protect others. The Tarasof case (1976), in which 01 USMLE Ethics txt New.indd 21 13/11/15 1:06 pm  22 Medical Ethics for the Boards a mentally ill patient told the psychiatrist of his intent to harm someone, is a famous example of this. In this type of case, the physician must inform law enforcement as well as the potential victim. Confidentiality is only broken in this way to prevent harm to others; this is rarely done. Other cases in which it is lawful to break confidentiality include partner notification for sexually transmitted diseases such as syphilis and HIV. The patient’s right to confidential ity in such cases is less important than another person’s right to safety. However, all efforts must first be made to enlist the patient to inform the intimate partner. No lawsuit against a physician for breaking confidentiality in order to notify an innocent third party that his health may be at risk has been successful. MEDICAL RECORDS The physician or health-care facility physically owns the medical record, but the infor mation contained within it is the property of the patient. Although the medical record as a physical object remains always in the hands of the health-care facility, the patient has an absolute right to free access to the information it contains. The information contained within a patient’s medical record is covered by all the same rules of confidentiality as any other privileged medical information. You cannot release the medical record without the consent of the patient. No one except those directly involved in the care of the patient has a right to access to the record. Patients cannot take sole possession of the physical medical record but they have a right to access or copy the information. For example, you have a new patient with a complex history who has been trying to get a copy of her record from her previous doctor. The other practice said she must provide them with a valid reason for why she needs the chart. You call the other doctor’s office trying to get the chart. The practice administrator informs you that the patient is extremely unpleasant and difficult. In addition, because the patient has not paid her bill the prior practice feels no obligation to provide you with the chart. The patient returns to see you the following day and asks what has become of her record. What do you tell her? The patient has a right to her medical records. No one has a right to interfere with this for any reason. You should tell her that she should be allowed a copy of the chart. A patient does not have to give her doctor a reason for requesting her own property, and she is enti tled to this information whether or not she is “pleasant.” Furthermore, the medical record 01 USMLE Ethics txt New.indd 22 13/11/15 1:06 pm  Chapter 4: Confidentiality and Medical Records 23 should not be “held hostage” to compel a patient to pay her medical bills. The need for information to take care of patients outweighs the physician’s right to payment. CORRECTING MEDICAL RECORD ERRORS When an error in a chart needs correcting the doctor should draw a line through it and then initial the correction. This allows anyone reading the chart to see what was originally there and it ensures that medical errors are not being covered up. You cannot just remove pages from the chart or cover them over with correction fluid if there are mistakes. This makes it look as if you are hiding medical errors. If you forget to put in a note or document something and want to add it the next day, you cannot put a note in the chart with the old date. If you forgot to put a note in the chart documenting a patient’s condition yesterday, you cannot write a note today with yesterday’s date on it. In other words, you cannot ‘backdate’ notes. Your notes must always bear the current date and time. 01 USMLE Ethics txt New.indd 23 13/11/15 1:06 pm  61 Chapter 12: Doctor/Patient Relationship BEGINNING AND ENDING THE RELATIONSHIP The relationship between a doctor and his patient is a voluntary relationship that is to be entered freely on both sides. In the same way that you cannot compel a patient to accept a particular doctor as her physician without her agreement, a physician cannot be compelled to accept a patient without his agreement. A doctor must agree to accept a patient. There is no obligation on the part of the physician to accept a patient. This is true no matter what need the patient has and whatever expertise the doctor may possess. For example, a patient with diabetes lives in a small town with only one endocri- nologist. The endocrinologist has a full practice and is not accepting new patients. The patient has very bad diabetes and has a very complex regimen that her family practitioner insists is beyond the scope of his understanding. The patient shows up in the office and insists to the office manager that she be accepted. What should be done? The physician is under no legal obligation to accept the patient. There is considerable misunderstanding of this issue. The physician, by training and inclination, is geared to aid the suffering. However, there is still no mandate for the physician to accept the patient nor can a patient force a physician to take care of her. Even Good Samaritan laws, which protects caregivers from liability if they aid a sick person in the street, do not force the doctor to aid an injured person. You may feel a moral obligation to help everyone, but there is no legal obligation to enter into a doctor/patient relationship. This is different from a hospital’s mandate to provide emergency treatment to anyone who comes to the emergency department. Hospitals cannot turn anyone away at the door of their emergency room if they come seeking care. This does not mean they must provide continuous care after discharge, but it 01 USMLE Ethics txt New.indd 61 13/11/15 1:06 pm  62 Medical Ethics for the Boards does mean there is a national legal mandate for all hospitals to provide emergency manage ment and treatment of all patients. Once a patient and physician have entered into a care relationship there is far greater complexity in ending that relationship. A physician cannot suddenly end the relationship. He must maintain the care of the patient until the patient can find an appropriate alternate source of care and he must give “reasonable notice”. GIFTS FROM PATIENTS Small gifts from patients of nominal or modest value are acceptable on the part of the physician. This is provided that there is no expectation of a different form of therapy or a higher level of care based on the gift. You can accept a cake at Christmas, a balloon on your birthday, or other tokens of esteem, but not if the patient expects an extra, or different prescription for something, in exchange for the gift. The rules on gifts from patients are far less rigorous, precise, or clear than the rules on gifts from the pharmaceutical industry. There is an automatic presumption that gifts from industry always carry an influence toward a product, service, or prescribing practice. Gifts from industry are viewed differently because there can be no other intention behind them except to buy influence and alter behavior. There is no such automatic presumption on the part of gifts received from patients. DOCTOR/PATIENT SEXUAL CONTACT Sexual contact between a physician and a patient is always inappropriate. It is unclear if there can ever be a completely acceptable, ethical way to alter the physician/patient rela tionship so that sexual contact is acceptable. At the very least, the physician and patient must mutually agree to end the formal professional relationship of a doctor and a patient. It is not clear how much time must elapse between the ending of the professional doctor/ patient relationship and the beginning of a personal relationship. The recommendation for psychiatrists is somewhat unique. The American Psychiatric Association guidelines spe cifically state that there can never be a sexual or personally intimate private relationship between doctor and patient even after the professional relationship has ended. In other words, a psychiatrist should not have sexual contact even with former patients. These guidelines apply no matter who initiates the relationship. In other words, it is not more acceptable for a doctor and patient to have sexual relations if the patient initiates the 01 USMLE Ethics txt New.indd 62 13/11/15 1:06 pm  Chapter 12: Doctor/Patient Relationship 63 sexual relationship rather than the physician. These guidelines also take no account of gen- der or sexual orientation. It is always ethically unacceptable to have a sexual relationship between a psychiatrist and either a current or a former patient. It is ethically unacceptable for a physician of any kind to have a sexual relationship with a current patient. 01 USMLE Ethics txt New.indd 63 13/11/15 1:06 pm