The limits of privacy with patients with STDs
Disclosure to patient's partner must come from patient
If a patient has a sexually transmitted disease and you are fearful of him or her infecting others, you may be tempted to inform the patient's spouse or significant other. However, this is the patient's decision to make... not the doctor's.
"If you tell the patient they should discuss this with their husband or wife, and they say no, then under no circumstances can you do so," according to Jonathan D. Lawrence, MD, JD, FACEP, a physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. "If you spill the beans with the significant other, that's a violation of the law."
However, you can encourage the patient to inform their spouse or sexual partners about their STD. You also can — and should — tell the patient that you are required by law to report to the health department any STD that is listed by your state as a reportable disease, and make them aware that the health department may contact their significant other. But that's as far as you can go.
"If you can't convince your patient to tell them, you can't take it upon yourself to go inform the person's contacts," says Lawrence. "You can try to be as convincing as possible, but you can't make the person either get treated or inform their partners."
If you do, you are leaving yourself open for violation of HIPAA, and accusations of negligence, with both criminal and civil liability coming into play, says Lawrence. In essence, you do not have a duty to the patient's spouse; you only have a duty to the patient, he says.
The basic rule is that an STD is like any other medical information — a private matter between the physician and the patient, unless the patient gives permission to disseminate it to anyone else. "Otherwise this information should be shared only with those who, by statute, require notification," says Matthew M. Rice, MD, JD, FACEP, chief medical officer at Northwest Emergency Physicians of TeamHealth in Federal Way, WA.
Other medical professionals may be informed if they are participating in the patient's care and have a need to know, says Rice. Other individuals should not be notified unless there is a compelling reason such as a judicial order, valid legal summons for information, or life-and-death situation. "If the beans are spilled and there are damages, then litigation could successfully occur," says Rice.
Damages from litigation are very case and locality specific, and disclosure of confidential information can invoke financial penalties under federal, and possibly state, confidentiality laws, says Rice.
When a patient is diagnosed with an STD, he or she also must be notified of appropriate medical precautions to take, and reasonable strategies to prevent transmission to others. The physician should recommend the patient's sexual partners be notified and treated, advises Rice. "If the individual is married, then you should tell the patient to notify that party and all others who may be at risk," he says.
Reporting requirements vary from state to state, and at times, jurisdiction to jurisdiction, but most states and jurisdictions have reporting requirements for gonorrhea, syphilis, and chlamydia. Generally, requirements to report are similar to other infectious diseases with a public health risk. "Thus, each physician should check with their local health departments to see what is required reporting by law," says Rice. "This should also be verified with the hospital where you work, since often a report of an STD comes from a lab report and the ordering physician may not be available."
Typically, hospitals have a systematic process to notify reporting authorities according to statutory law, and a process to notify clinical providers for correlation with a test result and treatment.
"HIV testing has always been more complicated, and the disease has been politicized and carefully regulated for many years," notes Rice. "It would be unusual to know of an HIV-positive test without the patient having consented to testing, and strict rules regulate how reporting must be accomplished."
Take steps to reach patient
If you have a positive culture and can't reach the patient, you have to document that you tried and were unsuccessful, says Lawrence. But the question is, how hard do you have to try?
"I don't know of any case where failure to get a hold of the patient ended up being construed as negligent," he says. You must call the patient using the telephone number on record, or send a telegram or letter to the address listed, and if you're unsuccessful because the number is disconnected or information is incorrect, your obligation most likely ends there, says Lawrence.
"If after doing that you still can't get a hold of the patient, you have done all you can do. The standard of care has not yet reached the point where you have to double check that the number is right. You have shielded yourself from liability if you used the contact information on the chart," says Lawrence.
However, you can increase the likelihood that you will be able to reach the patient with this process: Have the nurse or physician personally ask the patient for the best way to reach him or her if the culture comes back positive. "The admitting office often does a terrible job at getting correct phone numbers, and isn't interested in how accurate they are, so their records may not be updated," says Lawrence.
Failure to contact a patient is a significant legal risk for both the physician and the hospital, says W. Frank Peacock, MD, vice chief of emergency medicine research at The Cleveland Clinic Foundation. "That is why I rarely establish a callback routine when a patient wants to leave before all their results are back. Instead, I tell the patient they have to contact me," he says. "That way, if there is a failure to reach them for whatever reason, the onus was on them. I've had patients go out to the bar after leaving the ED. How could I possibly track them down?"
At The Cleveland Clinic, for all culture results that may return several days after the patient has left the emergency department, a callback system is used. When the results come back, the ED physician determines the importance of immediate callback. For example, the patient is called immediately for a positive spinal fluid culture, even if it is 4:00 a.m., but for a positive STD culture, the patient would be called the next morning by an ED nurse.
"Our process requires that the nurse must reach the patient themselves. No message takers or answering machines are allowed," says Peacock.
If an answering machine is encountered, a simple message is left stating that the patient should call the hospital where he or she was treated. When the patient is reached, he or she may be asked to return to the ED or a prescription may be called to a local pharmacy. Appropriate instructions are given, and follow up is arranged if needed.
Since patients often leave inadequate or inaccurate information, timely contact is not always possible. However, when a positive test is known and the problem was not already treated, then it is the responsibility of the medical providers and institutions to have worked out a mechanism of informing the patient and public health authorities as required by law, says Rice.
Minors and parents
If a minor is brought to the ED by a parent and complains of abdominal pain that turns out to be pelvic inflammatory disease (PID), can the physician inform the parents?
"The law in most states is that most minors can seek care for STDs without their parents' consent. But it doesn't really raise the issue if they are there because the parents brought them," says Lawrence.
In the ED, providers will never be 100% certain that the patient has PID, since culture results won't be available for 48 hours, notes Lawrence. "Instead, you can tell them it's an infection and you are investigating the cause," he says.
If a gonorrhea culture comes back positive for a minor who was discharged from the ED, the provider has every legal right to talk to the parents, and informing them is perfectly acceptable, says Lawrence.
As for admitting adolescents with PID, Lawrence recommends obtaining a consultation with a gynecologist to determine whether this is necessary. "That certainly would insulate the ED physician from any accusation that the patient wasn't treated according to the standard of practice," says Lawrence.
Typically, a first-time PID patient is treated as an inpatient to avoid potential litigation, says Rice. "But in some communities, and with new treatment strategies, outpatient treatment may be reasonable if accepted as the community standard," he adds.
Sources
For more information, contact:
- Jonathan D. Lawrence, MD, JD, FACEP, emergency department, St. Mary Medical Center, 1050 Linden Ave., Long Beach, CA 90813. Phone: (562) 491-9090. E-mail: [email protected]
- W. Frank Peacock, MD, The Cleveland Clinic Foundation, Department of Emergency Medicine, Cleveland, OH. Phone: (216) 445-4546. Fax: (216) 445-4552. E-mail: [email protected]
- Matthew M. Rice, MD, JD, FACEP, chief medical officer, Northwest Emergency Physicians of TeamHealth, 3455 S. 344th Way, Ste. 210, Federal Way, WA 98001. Phone: (253) 838-6180 ext. 2118. E-mail: [email protected].
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