Cho Sueng-Hui and HIPAA

Mary Johnson wonders if HIPAA prevented Cho from getting much needed help:

Generally speaking, a health-care provider cannot talk to another health-care provider about a mutual patient without a signed release. Everything is harder, from simple consults to getting lab results to records transfer.
I expect it’s why those court records on Cho Sueng-Hui never got to anyone anywhere who might have been able to prevent what happened from happening.

Comments

Anonymous
” . . .a health-care provider cannot talk to another health-care provider about a mutual patient without a signed release.”
This is precisely the opposite of what HIPPA says. Yet another example of how the internet is a font of misinformation. Doesn’t anyone ever read the rule before commenting on it? HIPPA is as much an antiprivacy rule as anything else because it specifically does NOT require patient consent for release of information for treatment, payment, or healthcare operations.
Rich, MD
I agree with the above commentor. HIPAA does not require a release for two providers to discuss a mutual patient.
The Independent Urologist
HIPAA allows providers to communicate without signed releases, despite the misconception among most people regarding HIPAA.
Anonymous
Please note that HIPPA does not let you discuss the case who are not mutual providers of care, such as college officials, reporters, etc.
Anonymous
There are a lot of myths about HIPAA:
1. It prevents health care providers from talking to each other without a release, that was corrected above.
2. It prevents health care providers from talking to familty or others that it needs to obtain information from or exchange information with in order to safely treat a person. It does not. Nothing in HIPAA prevents a psychiatrist or ancillary mental health professional from obtaining information from family or others if clinically necessary. Also, while one might have to defend oneself if challenged, it does not prevent a caretaker from providing information if needed to secure the health and safety of a person. The key, is that those actions are a part of medical care and not some other activity, such as an employer making a disability determination, etc.
I might add, that any psychiatrist or other therapist who fails to take action to prevent imminent harm, because they think it is against a rule or against the law is a moron with no sense of judgement or proportion. Saving a life is more important than avoiding being sued. When I was a resident, a district judge, shaking his gavel in my face, explained to me that my job is to follow my medical judgement in doing what is right, and if I think that to do so requires me to violate some law, to call him and he will issue a court order ordering me to act accordingly. I have never forgotten that lesson and it has stood me in good stead for 2 decades.
3. It applies to all healthcare providers. It only applies to healthcare providers who engage in the covered electronic transactions specified in the enabling legislation. It in fact does not apply at all to a great many psychiatrists and psychotherapists who collect only from their patients or file only paper claims. They are covered by state law and case law preexisting HIPAA.
4. If a disclosure is allowed by HIPAA, then it is legal. This is a complete myth. Until the US Constitution is overturned, State law will continue to supercede HIPAA where it is more restrictive. State law must be obeyed or one may face the consequences in state court, whether HIPAA covered or not.
5. HIPAA protects patient privacy. The truth is, HIPAA does far more to erode patient privacy than protect it. Before HIPAA, your records could be sent to insurance companies only with your consent. Now, they can be shared for with the millions of people who work in healthcare without your consent for “treatment, payment, and healthcare opertations”. Furthermore, the Federal government, in HIPAA, asserts to itself the dubious right to demand to look at your records (for the purpose of enforcing HIPAA).
Anonymous
UGH… Dr. J needs to take some basic HIPAA training.
Anonymous
I have heard HIPAA trainers get it all wrong. It is just 1500 pages more or less, it they are going to teach it, they ought to read it.
BTW, the last word is not in on the “legality” of HIPAA, it is possible to breach a duty to a patient while being HIPAA compliant and lose a suit over that. Just because something is within HIPAA does not mean it is morally right, fulfills your legal duty, or even legal.
HIPAA is a floor below which a covered entity risks being fined for violating HIPAA. It does not mean anything more than that.
Note that providers are certainly not required to make a disclosure just because it is allowed by the HIPAA rule.
Anonymous
The bottom line is that you have to get a signed release to get records from other places. Whether its HIPPAs fault or not I dont know.
I am constantly having to get records from OSHs for my patients, and every hospital that I have ever dealt with requires a signed consent before they will comply with the records release.
I suspect the reason is because hospitals have been sued in the past for releasing these records without expressed written consent.
Maybe it has nothing to do with HIPPA, but judges in fact interpret the law to mean that you cant release records to anybody, doctor or otherwise, without a signed consent.
DR. MARY JOHNSON
Practically speaking, the “myths” and misconceptions of HIPAA, are EXACTLY the reason that information does not get exchanged properly or well between heatlh-care providers.
Practically speaking, doctors and nurses and office managers worry alot about the paperwork AND the releases . . . and the legal ramifications of saying too much to the wrong person.
Practically speaking, information is generally NOT exchanged between providers as freely or comfortably as it was in the past.
It’s about fear of being sued . . . or clipped by Big Brother.
But the lawyers and politicians do not deal in the practical do they?
I’d like to address this comment:
“Saving a life is more important than avoiding being sued. When I was a resident, a district judge, shaking his gavel in my face, explained to me that my job is to follow my medical judgement in doing what is right, and if I think that to do so requires me to violate some law, to call him and he will issue a court order ordering me to act accordingly. I have never forgotten that lesson and it has stood me in good stead for 2 decades.”
If you visited my blog, you would know that (1) I got fired for saving a child’s life and reporting it to hospital peer reveiw, (2) I got sued for reporting – in confidence – what happened to US & NCDHHS, (3) the NC Medical Board did absolutely nothing to protect or defend the duties it requires, and (4) when I finally got to court three years later I was swindled out of a fair settlement by perjury and contempt on the part of hospital administrators.
To date (it’s been nearly ten years), I have not found a DA or a judge in North Carolina that will wave his magic gavel and do anything to right those wrongs. You see, I’m not a Dukie.
I agree that saving a life is more important than avoiding being sued. But perhaps you should not be so quick to sniff until you’ve actually been there.
I’ve spent over two years in the blogosphere trying to get someone to help me shame law enforcement officials in the state of North Carolina into enforcing the law, and so far have been spat on.
By the way (Mr. Cole), snark is not tolerated at my blog. If someone has a point to make, make it. But you can take the personal stuff and stuff it. It will not be published.
Anonymous
Dr. Johnson, I haven’t been sued yet, but I have been fired, cheated out of pension benefits and, and slandered for defending quality care. One difference is that I never sought redress in the courts because I was never raised to expect fairness from the legal system when those with social and political power abuse ordinary people. After speaking to a few lawyers and learning that contractually, I had a cause for action but that enforcing it would be a very very iffy proposition, and very expensive win or lose, I simply elimated the bitterness and the offenders from my heart and went on with my life.
In the impoverished neighborhood that I grew up in, injustice and having to fight just for a few square feet of ground to stand on was a common fact of life. I was raised to maintain my personal integrity, but not to expect it with any consitency from others. To fight to the death where something is worth dying over, but put my life on hold for years looking for vengeance, or for justice where it is unlikely. “Fairness is what you give, not what you get.” When I find others who believe in being fair for fairs sake, I will partner with them. I made the mistake of breaking that rule once. Never again.
I have read your blog and know the feeling. I was unwilling to live with that feeling for a prolonged period of time and found peace in knowing that while I paid a price for maintiaining my integrity, it was a price worth paying, and in acceptance, and even forgiveness (forgiveness of the morally pitiful individuals involved as individuals).
I hope you find peace.
DR. MARY JOHNSON
Thank you for sharing. I sometimes forget I am not alone in what I’ve endured (although I’ve met many doctors on the road with similar stories) . . . maybe just unique in that I’ve chosen not to accept it as the way things are.
Perhaps it would have been easier if it had not happened in my own home town in full view of my parents.
I said this on a local blog this week and I’ll say it here. Something very bad happened this week at a place where I used to worked. It’s something that I worked very hard to prevent . . . playing by the rules that did not work for me ten years ago and fairly obviously still do not work today.
I don’t know what I’m going to do about it yet. But I’m going to do something.
It’s the only way I’m going to merge integrity with peace.

Cho Sueng-Hui and HIPAA

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