Unfortunately, pertinent information is often absent or kept protected during the emergency department (ED) visit, limiting easy access by providers.
What HIPAA says: HIPAA requires providers to give a patient access to his/her PHI when the patient specifically requests it, unless the PHI or patient is subject to special protections or another law authorizes the provider to withhold the information (e.g., a state law further restricting disclosure of mental health information).
Absent such a request and assuming the patient has not objected to the provider’s disclosure of PHI to family members, this situation raises ethical rather than HIPAA concerns.
Certainly you’ve heard a colleague say, “That’s a HIPAA violation! Yet for providers, there is a real reason to be careful: HIPAA violations can carry significant penalties for individual and institutional providers (referred to under HIPAA as “covered entities”) and their “business associates” (individuals and organizations doing work on their behalf, e.g., claims processor or business manager).
When it comes to gray-area situations, it is important to recognize that HIPAA is not intended to interfere with a patient’s medical care.
Situation #6: A patient’s family member asks the provider not to inform the patient of a serious diagnosis (i.e., brain tumor) made in the ED that was shared with the family for a patient who came in incapacitated (i.e.
in status epilepticus) and is now awake and alert because the family doesn’t think the patient cannot handle the information.
For example, physicians discussing a specific patient’s case on a crowded elevator could be a HIPAA violation.
In this situation, a reasonable safeguard – such as not disclosing PHI in a crowded, public setting – would be expected when the case could easily be discussed in a more private setting.
What HIPAA says: Providers may disclose “directory information” (i.e., patient’s location and general health status) if the caller identifies the patient by name.
This exception permits callers to locate friends or family who may have been involved in an accident.