No 'safe' way to gossip about patient info
Risk managers must mitigate the natural human temptation to snoop and gossip, because the potential legal ramifications can be huge, says Robert Wolin, JD, a partner with the law firm Baker Hostetler in Houston.
Risk managers should emphasize to employees that there is no "safe" way to share information about a patient. In the Wisconsin case, Wolin speculates that the nurses may have thought it was OK or at least not all that bad to take a photo of an X-ray in such a way that the patient's identification was not obvious. And the nurses may have thought that posting it online might be OK for the same reason, he says.
That kind of thinking must be countered, he says. For starters, the patient clearly had privacy rights in the X-ray, and the X-ray image was owned by the hospital, Wolin says. The reference to the photos on the nurse's Facebook page likely violated the nurse's agreement with Facebook that she would not post any materials that violate or infringe upon the rights of any third party, he says.
Wolin points out, however, that the X-ray may not have violated the patient's privacy, according to Wisconsin law. Wisconsin has comprehensive statutory provisions governing the disclosure of patient health care records, and Wis. Stat. Ann. §§ 146.82(1) begins with the premise that all patient health care records are confidential and may not be released.
"However, the statute allows information from a medical record to be released, without the patient's consent, if the information released together with the circumstances surrounding the release would not permit the identification of the patient," he says. "This is an exception that does not exist in many state privacy laws."
That does not mean such an Internet posting should be acceptable, however, even in Wisconsin. Wolin explains that even if the disclosure did not violate the Wisconsin patient privacy law, the Wisconsin Board of Nursing should be able to take disciplinary action against the nurses for unprofessional conduct.
"The nurse may attempt to argue that the release of the photo was permitted since the patient could not be identified from the photograph," Wolin says. "However, the board should be able to show that the copying of the X-ray was not authorized by law as the act was likely a violation of the patient's right of privacy."
Photographing the X-ray could violate the patient's reasonable expectation of privacy, Wolin says. Wisconsin's Privacy Statute prohibits the violation of the privacy of a person that is of a nature that would be highly offensive to a reasonable person, in a place that a reasonable person would consider private. It also prohibits giving publicity to a matter concerning the private life of a person, of a kind highly offensive to a reasonable person, he says.
"Clearly, a hospital should be an area a reasonable person would consider private, and posting pictures of an X-ray showing a sexual device in a patient's rectum on Facebook would likely be of a nature that would be highly offensive to a reasonable person," he says. "Under the invasion of privacy law, both the nurses and the hospital may have potential liability, especially if the hospital did not take reasonable precautions to prevent such breaches of privacy."
Source
For more information on interpreting privacy laws, contact:
Robert Wolin, JD, Baker Hostetler LLP, Houston. Telephone: (713) 646-1327. E-mail: [email protected].
Risk managers must mitigate the natural human temptation to snoop and gossip, because the potential legal ramifications can be huge, says Robert Wolin, JD, a partner with the law firm Baker Hostetler in Houston.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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