CONFIDENTIALITY

1. CONFIDENTIALITY AAOS ETHICS COMMITTEE Joan Krajca-Radcliffe, MD

2. Objectives • Be aware of the importance of maintaining confidentiality and of the difficulties incurred in the clinic and hospital environments • Identify the situations where overriding confidentiality is justified • Be aware of the physician’s legal and ethical responsibilities in these situations • Be aware of your state’s legal requirements for reporting to authorities, partner notification, and warning or protecting those at risk

3. Introduction Confidentiality refers to limits placed on releasing information disclosed by a person within the patient-physician relationship. It is a long-standing, time-honored tradition in medicine that encompasses standards from the Hippocratic Oath to professional codes to HIPAA regulations. Upholding confidentiality shows respect for patients. It encourages them to seek medical care and divulge sensitive information to enable appropriate medical treatment.

4. Case 1 You are a resident doing an outreach orthopaedic rotation at a local hospital when Dr. Raymond, an attending physician of the hospital is admitted to your service with orthopaedic injuries from a motor vehicle accident. A resident from another service had previously mentored under Dr. Raymond and asks for your computer password so he can access the chart.

5. What do you do?

6. Case 1 - Part 2 A physician colleague of your patient finds you at the hospital and demands access to the chart. This physician is not involved with treating Dr. Raymond but hints strongly of a personal relationship.

7. What do you do?

8. Case 1 - Part 3 While awaiting surgical treatment for his orthopaedic injuries, Dr. Raymond demands to read his chart.

9. What do you do?

10. Case 1 – Part 4 Dr. Raymond calls your attention to a chart notation of previous treatment for depression and requests that it be removed. He says that the episode was successfully treated, and he no longer has the symptoms. He is concerned that the information if widely known will jeopardize his status as an attending.

11. How do you respond?

12. Case 1 - Part 5 Prior to surgery for his orthopaedic injuries, Dr. Raymond has multiple pre-op labs. He tests positive for HIV antibodies. You and your attending discuss the findings with him, including the implications for his personal and professional life.

13. You encourage Dr. Raymond to disclose his status or allow his treating physicians to do so. Dr. Raymond refuses any disclosure whatsoever, and indicates that he has no intention of changing his medical practice, which includes performing invasive procedures.

14. Are you obligated to override confidentiality to protect third parties from infectious diseases, including HIV?

15. Case 2 You are in clinic and reviewing a patient’s pre-op clearance from his primary care physician for a knee replacement. You notice that he is on anti-seizure medication and reports a history of epilepsy. From previous conversations, you are aware that he drives himself to his appointments. He states that he only drives locally around town to run errands and that his family doctor has never discussed driving with him.

16. Are you obligated to override confidentiality to protect third parties from impaired drivers?

17. Are there other situations where a physician may be legally required to override confidentiality to protect third parties?

18. Case 3 You are called to the emergency room to see an elderly widow with a spiral humerus fracture. She lives in her home with her son and daughter-in-law who moved in to “help her out.” She appears coherent and rational but guarded. She is thin and somewhat unkempt with thread-bare clothes.

19. When you ask how the injury happened, she mumbles that she must have slipped and fallen. She is alone in the ER and doesn’t know where her son and daughter-in-law are or when they’ll be back. After discussion with her, you suspect possible elder abuse and/or neglect.

20. Are you obligated to override confidentiality to protect patients themselves?

21. Summary • Physicians should uphold confidentiality unless there are compelling reasons to override it. • Disclosure of confidential patient-physician communication may be necessary to protect an individual or the community as a whole, including third parties and patients who cannot protect themselves.

22. The physician must be aware of state and legal jurisdiction mandates for reporting to authorities, partner notification, and warning or protecting those at risk. • In some situations, the law provides clear direction regarding confidentiality, but in others, legal guidance may be lacking or may defer to physician judgment.

23. References American Academy of Orthopaedic Surgeons: Code of Ethics and Professionalism for Orthopaedic Surgeons, I.A, I.B, II.C. Adopted October 1988, revised 2011. http://www.aaos.org/about/papers/ethics/code.asp American Academy of Orthopaedic Surgeons: Standards of Professionalism on Providing Musculoskeletal Services to Patients, Mandatory Standards 1, 5, 6. Adopted April 2005, amended April 2008. http://www3.aaos.org/member/profcomp/provmuscserv.pdf American Academy of Orthopaedic Surgeons: Domestic and Family Violence and Abuse: The Orthopaedic Surgeon’s Responsibilities, Information Statement 1030. Adopted February 2007. http://www.aaos.org/about/papers/advistmt/1030.asp

24. Beauchamp T and Childress J: Principles of Biomedical Ethics, ed 5. New York, NY, Oxford University Press, 2001. Lo B: Resolving Ethical Dilemmas – A Guide for Clinicians, ed 4, Chapter 5. Philadelphia, PA, Lippincott Williams & Wilkens, 2009. Anfang S, Appelbaum P: Twenty years after Tarasoff: Renewing the duty to protect. Harv Rev Psychiatry 1996; 4:67-76. Dubowitz H, Bennett S: Physical abuse and neglect of children. Lancet 2007; 369:1891-1899. Dyer C, Pickens S, Burnett J: Vulnerable elders: When it is no longer safe to live alone. JAMA 2007; 298:1448-1450.

25. Hyman A, Schillinger D, Lo B: Laws mandating reporting of domestic violence: Do they promote patient well-being? JAMA 1995; 273:1781-1787. Department of Health and Human Services: 45 CFR Parts 160 and 164. Standards for Privacy of Individually Identifiable Health Information (2002). Council on Ethical and Judicial Affairs: Code of Medical Ethics, Opinions 2.23, 2.24, 5.05–5.10, 7.025, 9.0305, 9.031, 9.13, 9.131. Chicago, IL, American Medical Association, ed 2010-2011.