Publications
APS Bulletin • Volume 9, Number 5, September/October 1999
Pain and Public Policy
Communication in Medicine: Some Legal Pitfalls
T. Samuel Shomaker, MD JD
Communication in the medical setting is of critical importance. Information must be shared effectively but sensitively among healthcare professionals to achieve coordinated patient care. Communication between doctor and patient is the basis of a relationship of trust and honesty that must be in place for physicians to provide effective medical care to patients. To ensure high-quality care, information must be transmitted from patient to doctor and from doctor to other appropriate members of the healthcare team. Moreover, information relating to the healthcare status of patients is often sensitive in nature and may be embarrassing or damaging if it falls into the wrong hands.
How can physicians transmit healthcare information in a way that maximizes its medical usefulness but minimizes the potential for personal consequences for patients? As with many aspects of medical practice today, the subject of communication in medicine has substantial medical-legal implications with which healthcare providers must be familiar. This is particularly true in today’s electronic practice environment, in which a keystroke can disseminate information through e-mail far more widely and rapidly than ever before. This article outlines three significant medical-legal issues that relate to communication in the healthcare setting.
Case I
J.O. is a patient who received treatment for chronic shoulder pain in the pain clinic of a major medical center. In the course of taking J.O.’s medical history, Dr. X learned that the patient had a history of intravenous drug abuse. Dr. X ordered an ELISA screening blood test, which revealed that J.O. was HIV-positive. Dr. X informed the local health department about J.O.’s HIV-positive status. He was asked to e-mail a copy of the electronic record of J.O.’s clinic visit to the health department, which he did. J.O. found out about the notification and sued Dr. X for invasion of privacy and breach of confidentiality.
Confidentiality
This case illustrates the conflict between society’s need to be given information that is important to the health of the community and an individual’s right to autonomy and privacy (Carter, 1999). Personal autonomy encompasses the right to control dissemination of personal information. The concept of medical confidentiality is contained in the Hippocratic oath and in the American Medical Association (AMA) Code of Ethics, which states: “A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law” (American Medical Association, 1996). The confidentiality of the doctor-patient relationship establishes the trust that is essential for effective patient care. That trust is eroded when information obtained within the sanctity of the doctor-patient relationship becomes disseminated inappropriately.
Society’s right to know
Nevertheless, society has a right to know when someone is HIV-positive, because AIDS is a communicable disease that, if not treated appropriately, can spread to other members of a community.
The advent of electronic medical records has further added to the inherent tension in the doctor-patient relationship. In most cases, information contained within electronic records can potentially improve patient care and public health, because it is complete, accurate, and timely, but it carries a far greater threat of inappropriate dissemination than paper records because of the relative ease of electronic communication (Lohr & Donaldson, 1994).
Legal limits
Assessment of the legal landscape in this area reveals that the U.S. Constitution does not guarantee the right of privacy. The U.S. Supreme Court has stated on several occasions that citizens have a limited right to informational privacy, but this right is tightly controlled under federal law (Whalen v. Roe, 1975). In fact, in United States v. Westinghouse Electric (1980), the court established a balancing test to determine whether the release of a record is appropriate or inappropriate. This test considers several factors, including the type of record requested, the information contained therein, the potential for harm to an individual from nonconsensual disclosure, the potential injury to the relationship from which the record was generated, the adequacy of safeguards against disclosure, and the degree of need for access to the record.
Congress addressed the issue of medical-records privacy in the electronic age in the Health Insurance Portability and Accountability Act of 1997 (Carter, 1999). This law established standards for the electronic transmission of health data and, at the same time, placed an affirmative mandate on Congress to pass legislation protecting the privacy of individually identifiable health information by August 1999. If Congress fails to act within this time frame, the Secretary of Health and Human Services must promulgate regulations that provide protection by February 2000. At the time of this writing, no legislation has been forthcoming from Congress, and an acceptable bill has not yet been passed and signed into law (Association of American Medical Colleges Reporter, 1999).
The promulgation of federal legislation or regulations on the protection of the privacy of healthcare information will supplement state law, which, in most cases, is considerably stronger than federal-level legislation. Twelve states have written privacy protections into their constitutions, and several states have laws regarding privacy that especially recognize the provider-patient privilege (Carter, 1999). Three theories of recovery have met with some success in civil actions, including breach of a fiduciary duty of confidentiality (the establishment of a doctor-patient relationship creates a fiduciary duty on the part of physicians, hospitals, and health systems) (Watts v. Cumberland County Hospital System, 1985); invasion of the right to privacy (although 48 states recognize this right, broad disclosure of information has been required) (Lake v. WalMart Stores, Inc., 1998); and breach of implied contract (i.e., a contract in which patient confidentiality is inherit in the physician-patient relationship) (Hammonds v. Aetna Cas & Sur. Co., 1965).
In almost every jurisdiction, healthcare providers are protected, often by state statute, when they reveal information important to the health of the public to appropriate authorities. In fact, most states have statutes mandating that healthcare providers report health conditions, such as HIV-positive status and AIDS; thus, it is likely that patient J.O. would be unsuccessful in prosecuting the lawsuit described earlier. However, many states have laws establishing liability for disclosure of HIV-positive status that go beyond what is required for patient care or public health (Burris, 1995).
Case II
Dr. Y is a pain physician practicing in an individual practice association run by a local health maintenance organization (HMO). He believes that patient C.B. would benefit from a dorsal column stimulator, but C.B.’s health plan does not cover the placement of such a device. Dr. Y, while discussing this situation with C.B., mentions that he believes that a dorsal column stimulator is a viable option to help manage C.B.’s pain, but that he (Dr. Y) cannot insert the device because it is not covered under C.B.’s health plan. Dr. Y’s contract with the HMO prohibits him from disclosing treatment options to patients that are not covered by their health plans. When the HMO discovers that Dr. Y suggested this treatment option to J.O., the HMO drops Dr. Y from its provider panel.
Informed consent
Physicians are under an affirmative obligation to obtain informed consent from patients before rendering any treatment or therapy to them. This obligation includes the necessity to reveal treatment options, risks, and consequences (Spielman, 1998). When physicians proceed with treatment without obtaining patients’ informed consent, they can be held liable for battery (Foley & Dornette, 1991), which is an unauthorized touching of a patient. According to the law, the theory of informed consent is based on personal autonomy (i.e., an individual has ultimate control over his or her own body and what is done to it). In Case II, Dr. Y is caught in a difficult dilemma. He has an affirmative obligation to inform the patient of treatment options, but he is contractually bound by his relationship with the HMO not to discuss treatment options that are not covered by his patient’s health plan. In the mid-1990s many, if not most, physician contracts with HMOs contained gag clauses that limited physicians’ ability to communicate with patients (Gordon, Baker, & Levinson, 1995; Spielman, 1998). Thanks largely to vigorous legislative lobbying campaigns, antigag laws are now in effect in more than half of the states (Miller, 1997), and in most cases, the best advice for practitioners is to err on the side of full disclosure of risks and benefits in situations such as the one discussed in Case II.
Case III
Dr. Z, a pain physician, has just finished seeing A.R., a patient who has come to the clinic complaining of chronic back pain. After taking a history and performing a physical examination, Dr. Z concludes that A.R. does not have any physical basis for her back pain, and she decides to prescribe an antidepressant medication to mollify the patient’s concerns. In the front office, A.R. overhears Dr. Z dictating her visit notes in the presence of her nurse and receptionist: “A.R. clearly has no physical bases for her complaint. She is highly emotional and prone to exaggeration. This illness is all in her head.” Afterward, A.R. sues Dr. Z for defamation.
The law of defamation
Defamation is an attack on a person’s reputation. The law of defamation is intended to protect a person’s reputation from the harm that can be caused by false statements made to third parties (Eldrege, 1928). Written defamation is termed libel, and oral defamation is termed slander. The law of defamation has become quite complex over the years. A number of Supreme Court cases have dealt with defamation and have reached differing conclusions based on the peculiarities inherent in the cases involved. For example, in the famous case of New York Times v. Sullivan, decided in 1964, the court made it more difficult for public figures who attempt to prove that they have been defamed than for private citizens. The court decided that for an aggrieved party to prevail, the defendant must have published a statement with knowledge of its falsity or with reckless disregard for the truth. Despite the Supreme Court’s intervention in the area of defamation law, the basic principles of the law continue to reflect the tenets of English common law. Defamation cases ordinarily are decided in state courts, and the following elements must be present to support a claim of defamation (Mathews, 1987):
- The statement must be defamatory. To determine whether a statement is defamatory, it is prudent to ask, Would people think worse of the person in question as a result of reading or hearing this? (Parsons, 1993).
- The statement must be false. If the statement is true, there is no cause of action for defamation (Parsons, 1993).
- The statement must be communicated to a third party or published. Defamatory statements that are not witnessed by a third party cannot devalue a person’s reputation.
- In most cases, the person making the defamatory statement must have known or should have known that the statement was false.
- At least in some cases, the person claiming defamation must be able to prove the existence of damages that are directly attributable to the defamatory statement.
In Case III, Dr. Z made statements in the presence of others that could potentially damage A.R.’s reputation. The primary question in this case is whether Dr. Z’s statements can be defended as her medical opinion (i.e., were her statements “true”?). In any case, even if Dr. Z is lucky enough to convince a jury that she is not guilty of defamation, at the very least, she demonstrated poor judgment in making extraneous remarks about her patient. She created the potential of a lawsuit where none existed before. Furthermore, making disparaging remarks about a patient in a situation in which the patient might overhear is not a good way to practice medicine. It does nothing to enhance the relationship of trust that an effective therapeutic approach requires. A medical record should never include editorializing or offhand comments.
Rule: Think twice
The cases described in this article illustrate some of the problems in medical communication that can result from carelessness, inadvertent oversight, or even deliberate action. Keeping in mind the importance of a professional approach to relationships with patients and colleagues, avoiding potential liability is mostly a matter of common sense and good judgment. A good rule of thumb is always to pause and think twice about the potential impact of what you are about to say or write. This simple precaution will enable most physicians to avoid the specter of potential legal liability for breach of privacy or confidentiality or for defamation. It will also help to ensure that interpersonal relationships are maintained on a level that promotes optimal therapeutic effectiveness.
References
American Medical Association. (1996). Code of medical ethics: Current opinions with annotations. Chicago: Author.
Association of American Medical Colleges Reporter. (1999). Privacy picture still clouded as deadline nears. Association of American Medical Colleges Reporter, 8, 1, 5.
Burris, S. (1995). [Review of the book Health care privacy and confidentiality: The complete legal guide]. Journal of Legal Medicine, 16, 447-452.
Carter, P.I. (1999). Health information privacy: Can congress protect confidential medical information in the information age? William Mitchell Law Review, 25, 223-286.
Eldrege, L.H. (1928). The law of defamation. Indianapolis: Bobbs-Merrill Co.
Foley, H.T., & Dornette, W.H.L. (1991). Consent and informed consent in legal issues in anesthesia practice. Philadelphia: F.A. Davis.
Gordon, G.H., Baker, L., & Levinson, W. (1995). Physician-patient communication in managed care. Western Journal of Medicine, 163, 527-531.
Hammonds v. Aetna Cas & Sur. Co., 243 F. Supp. 793 (N.D. Ohio, 1965).
Lake v. WalMart Stores, Inc., 582 N.W. 2d 321 (Minn., 1998).
Lohr, K.W., & Donaldson, M.S. (Eds.). (1994). Health data in the information age: Use, disclosure and privacy. Washington, DC: Institute of Medicine.
Mathews, D.R. (1987). American defamation law: From Sullivan, through Greenmoss, and beyond. Ohio State Law Journal, 48, 513-514.
Miller, T.E. (1997). Managed care regulations in the laboratory of the states. Journal of the American Medical Association, 278, 1102-1109.
New York Times v. Sullivan, 376 (U.S. 254, 1964).
Parsons, D. (1993). The dangers of libel and how to avoid them. British Medical Journal, 306, 253-255.
Spielman, B.J. (1998). After the gag episode: Physician communication in managed care organizations. Seton Hall Legislative Journal, 22, 437-474.
United States v. Westinghouse Electric, F. 2d 570 (3rd Cir., 1980).
Watts v. Cumberland County Hospital System, Inc., 330 S.E. 2d. 242 (N.C. Ct. App. 1985).
Whalen v. Roe, Limited right to informational privacy, 429 (U.S. 589, 1975).
T. Samuel Shomaker is senior associate dean for academic affairs and associate professor of anesthesiology at the University of Utah School of Medicine in Salt Lake City, UT.