How best to deal with partners of gay patients
Question: Our facility is in a metropolitan area in which it is common to encounter patients who are openly gay. Physicians have asked about a potential conflict between preserving confidentiality and treating our gay patients and their partners with the same respect that we would provide anyone else. Are there any guidelines as far as what the clinician can say to the partner of a gay patient? We know that the law does not recognize the partner as a family member, but it seems overly restrictive to deny the partner any information.
Answer: No matter how much you wish to respect the relationship of a gay patient and his or her partner, your clinicians still must not divulge private health care information, at least not automatically. There also is a risk in trying to acknowledge a gay relationship.
Some lessons can be learned from a lawsuit defended recently by James Aiken, JD, of Jardine, Stephenson, Blewett, and Weaver in Great Falls, MT. Aiken defended a Missoula, MT, hospital that was charged with breaching the confidentiality of a lesbian patient.1 The trial court issued a summary judgment on the hospital’s behalf because the plaintiff did not establish a standard of care, and the Montana Supreme Court affirmed that decision, but Aiken says the experience highlights some of the dilemmas faced by well-meaning clinicians.
In that case, a woman went to a hospital emergency room because of abdominal cramping and was accompanied by a co-worker. When the nurse asked about possible pregnancy, the woman replied that she was lesbian, but the co-worker was not close enough to hear. When the nurse relayed the patient’s history to the doctor, the co-worker overhead the comment that the patient was lesbian. The doctor then went to examine the patient, and because the co-worker was present in the exam room, he asked the patient if she was her partner.
The patient later sued the hospital, alleging that the doctor breached her confidentiality by revealing her sexual orientation to the co-worker. The doctor argued that he was only trying to be considerate by respecting the apparent partner just as he would respect the partner of a straight patient. And he only asked if the other person was the patient’s partner; he didn’t volunteer any confidential information to the third party without trying to clear it with the patient first.
"This doctor is a good guy and he really was just trying to be sensitive to the possibility that this person in the exam room was her partner," Aiken explains. "It didn’t occur to him that he should be more circumspect because the patient had been so open with the nurse about her sexual orientation."
The doctor and hospital administrators were surprised when the patient sued, Aiken says, since no confidential health information was disclosed. The case is an illustration of how sensitive patients may be about their sexual orientation, and it underscores the need to be careful with patient privacy even when clinicians are well-meaning and don’t see homosexuality as anything negative or shameful.
"We learned that it’s possible to be too sensitive in these situations," the attorney says. "I argued that if a physician walks into the exam room and sees someone there with the patient, it’s normal to ask if that’s your husband, sister, mother, or brother. But depending on who the person actually is, they might take offense at any of those questions. The risk is greater if you mention sexuality."
Open-ended questions work best
When there is a third party in the room, it still is necessary to ask who it is before discussing the patient’s health care. Exactly how you do it can be important. In retrospect, Aiken says it is clear that the Montana doctor should have used neutral wording instead of asking if the third person was the patient’s partner. He suggests asking something like "Who is this you have with you?" and then "Should he/she stay while we talk?"
If the patient volunteers that the person is his or her partner, that still does not mean the doctor can discuss confidential information in front of that person without the patient’s permission. If the patient says it is OK for the person to stay and hear the conversation, that’s all the permission you need. In that sense, there is no difference between gay and straight, married and unmarried couples.
The Montana case also taught the hospital a few lessons about preserving confidentiality in the emergency department. Though the case centered on sexual orientation, the disclosure just as easily could have involved any other confidential information overheard by a visitor in the department. The hospital learned these lessons:
• The emergency department design encourages confidentiality breaches.
The Montana hospital’s emergency department is designed with a nursing station in the central area and exam rooms surrounding it, a common setup. When clinicians are discussing a patient at the nursing station, it is easy for anyone in the exam rooms to overhear. That means clinicians must be more careful about how they discuss information in that setting.
"As a rule, there is very little privacy anywhere the emergency department," Aiken says. "You have to exercise more caution than you might in a different part of the hospital."
• Patient companions should be discouraged from being in the exam areas.
In an emergency department, it is not realistic to actually ban non-patients from the exam rooms but Aiken says staff should discourage it. After the incident at the Montana hospital, existing signs that asked non-patients to stay in a designated waiting area were enlarged and made more prominent. Also, clinicians must remember that the emergency department is unique in having non-patients wandering around treatment areas and act accordingly.
Reference
1. McMillan v. Gallea, Supreme Court of Montana, Case No. 96-282.
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