Applies to all facilities and covered entities
Posted October 1, 2002
By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
I pulled into Dr. Eberhardt’s parking lot on a hot, steamy Texas Hill Country day in August. As I got out of the car, I could see the heat shimmering up from the parking lot. For weeks, I had been complaining to everyone I knew about a pain in my hip. Finally, my office manager sat me down and said, “Suzanne Roberta Moeckle! You get on the phone right now and call your doctor. I’m wore out listening to you complain!” Then she hovered over me like an irritating gnat until I made the call.
So there I was, walking into the doctor’s office, cogitating on all that work piled up on my desk back at the office, and trying to avoid thinking about the fact that I am getting old enough to have a pain in my hip.
Dr. Eberhardt is one of the last of a dying breed, the small town family doctor with his own office. He’s a big jolly man in his early seventies. He comes from an old German, Hill Country family. In fact, he has the vestiges of the German accent, common to Hill Country Germans of that generation. He’s had the same staff at his office for the past 15 years.
As I walked into the office, I could hear Rowena’s strident voice punctuated by cigarette-induced raspy laughs. Rowena is Dr. Eberhardt’s good old gal receptionist. She was talking on the phone to a patient.
“Miz Smithson, did you say that your prescription is for Prozac?CWell, we’ll fix you right up . . .”
As I looked down at the counter to sign in, I could see that Rowena had a patient chart open in front of her. It was for Gayla Smithson!! “Gayla Smithson’s on Prozac?!!” I thought. “Boy, if her ex-husband found that out, he’d swoop down on her and take those boys out of her custody pronto.”
“Well, Suzanne Roberta! It’s about time you got yourself here. It’s time for a full physical. Have you tried to lose weight like Dr. Eberhardt told you a year ago?”
At that moment, I could feel all eyes in the waiting room on my backside, which felt broader by the minute. “I’m just here about a pain in my hip,” I whispered.
“A pain in your bottom?” Rowena seemed to bellow.
I finally sat down in the waiting room to wait for my turn to see the doctor. After 20 minutes of sitting and listening to Rowena on the telephone discussing the ailments of what seemed to be every resident in town, Dr. Eberhardt’s nurse, Arlene, came for me.
Problem: Under HIPAA’s privacy rules, a patient’s medical information or protected health information is protected from disclosure to third parties unless that disclosure is made for the purpose of treatment, payment or health care operations or unless the patient authorizes the disclosure. Although HIPAA’s mission is not to go after inadvertent disclosures, providers need to take reasonable precautions to avoid such disclosures.
Possible Penalties: A $100 penalty could be assessed for one violation of this type. Entities can face up to $25,000 in penalties for multiple violations of a single requirement made during a calendar year.
Solution: With some simple and easy safeguards, this problem can be fixed. To prevent this disclosure, Rowena can lower her voice and make sure that patient files are not left out in the open. Of course, disclosures that are incidental to an otherwise appropriate disclosure are not prohibited by the rules. One must use good judgment in determining what constitutes an “incidental” disclosure and take reasonable precautions to prevent incidents such as this one.
After weighing me, and making infuriating clucking noises as she wrote down my weight, Arlene handed me a cup and asked me for a specimen.
“Arlene, I’m just here for a pain in my hip,” I protested. “Now Suzanne Roberta, it’s been over a year since your last physical, and Dr. Eberhardt said that you need to be completely checked, so quit bein’ ornery and get me the specimen,” Arlene replied.
I meekly made my way to the bathroom. On my way back, I started noticing charts stuck in clear, plastic folders hanging on each door. I’d forgotten to ask Arlene what exam room I was supposed to go to, so I started checking the names on the charts in the folders. As I made my way down the hall, I did a double take in front of the door of exam room 3.
“Anita Haley!?” I thought with surprise. Anita is my neighbor. She’s an elderly lady with the hang-dog expression of a basset hound. Anita has been boring me for years with complaints about her various ailments. Every time I see her approaching my front porch, I’m torn between a desire to be compassionate and an urgent need to flee.
Temptation got the better of me, and I peered closer at her exposed chart through the clear plastic of the hanging folder. There I saw in big letters the words AFunctional Overlay, Secondary Gain, and psychosomatic.”
AAha!” I thought, AShe’s a nut case; I knew it!”
Problem: Same as above. This patient’s diagnosis is protected health information and should therefore not be disclosed without her authorization unless the disclosure is for treatment, payment or healthcare operations.
Possible Penalties: A $100 penalty could be assessed for one violation of this type. Entities can face up to $25,000 in penalties for multiple violations of a single requirement made during a calendar year.
Solution: Again, the solution is simple. One possible remedy could be to use opaque plastic to cover the chart when it’s hanging on the door.
I found my chart and exam room and went in to sit on the exam table. As I waited, I could hear Dr. Eberhardt’s booming voice on the other side of the wall.
“Mr. Haskell, if you don’t stop drinking that rot-gut gin, your liver’s going to up and disintegrate!”
Ed Haskell is our town’s version of Otis from the Andy Griffith Show. Asking him to stop drinking is akin to teaching a pig to sing–it doesn’t work, and it annoys the pig.
Problem: Again, the same.
Possible Penalties: A $100 penalty could be assessed for one violation of this type. Entities can face up to $25,000 in penalties for multiple violations of a single requirement made during a calendar year.
Solution: This office needs some training on HIPAA’s overall goal of increasing patient confidentiality. The doctor simply needs to lower his voice.
After a few minutes of listing to Ed Haskell proclaim his moderation in the drinking department, Dr. Eberhardt entered my exam room.
After spending some time with Dr. Eberhardt and getting a prescription, I made my way back to Rowena to pay my bill. Standing at the counter in front of Rowena’s desk was Fred Quinn. Fred is the town florist. He’s about sixty and is the nicest man you’d ever want to meet. He was explaining to Rowena that though he didn’t have an appointment, he’d be obliged if she could fit him in on an emergency basis. Then, he leaned over and whispered something to Rowena. Rowena turned to face Dr. Eberhardt’s office.
“Hey Dr. Eberhardt! Fred Quinn’s out here and needs you to check those hemorrhoids again.”
To be continued . . .
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
505 East Huntland Drive, Suite 335
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
