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General Rules of Confidentiality

occ-env-med-l Digest - 16 May 2002 to 17 May 2002 (#2002-3)

Friday, May 17, 2002 7:29 AM

This from perspective of an injured workers' advocate:  The confidentiality
issue is generally state-law specific, either in the state's WC law itself
or other legislation/common law precedent regarding patient privacy.  In
our State (NC), WC law provides that the employer or its carrier, usually,
is entitled to clinic notes, lab data, from MD treating the work-related
injury if it/they are paying compensation, including medical, to the IW.
Discovery rules permit defense to request remote historical info on grounds
of relevancy to injury/disease being treated (prior back injuries in a
current back injury claim, for example.)  NC Rules also prohibit
e'er/carrier/rehab people they hire, et al., from having ex parte contacts
with physician.  There is a limited exception authorizing nurse case
managers to meet w/ patient and MD post-exam, on their own dime.  They
cannot simply show up for appointments and sit in on patient exam.  Voc
rehab folks, who have no medical credentials, may communicate (with
simultaneous notice to IW or rep) with treating MD only to request
restrictions or to present job descriptions, pre-approved as accurately
identifying all physical requirements of the former or newly proposed job
by IW and/or representative, to determine whether claimant has physical
capacity to perform it.


WC adjusters sometimes misinform unsophisticated claimants, most of whom
are not yet represented by counsel, that they "must" sign a blanket
authorization allowing access to medical records- unlimited as to type or
age, in order to circumvent the rules- and the horse is out of the barn by
the time the patient learns he/she has been lied to or counsel is engaged
and moves to cancel the authorization.

Also, as someone pointed out, there are often overriding protective laws,
including federal, covering extremely sensitive information such as mental
health and substance abuse treatment, perhaps blood-borne pathogen info.
In New York, the WC Board may have given you the gospel in that State re
FOI laws, but would recommend you check with an experienced claimant's
attorney for verification.

Claimants' advocates applaud physicians who are circumspect about
protecting their patients' expectations of privacy in these situations.  In
ordinary civil litigation (personal injury), defense contact with
plaintiffs' doctors is prohibited, and defense must use formal discovery
rules presided over by judges when there is controversy over disclosure.
As usual, in WC arena, the lines get somewhat blurred or ignored.  When in
doubt, you might consider erring, if at all, on protecting privacy by
withholding information you consider sensitive, particularly if it does not
seem relevant to the work injury on a common sense analysis, or maintaining
separate files as some suggested, and let them try to challenge you.  Keep
in mind that if your deposition is taken and the stuff you wish to keep
private is still in your patient's file, which sometimes includes private
correspondence between you and claimant's attorney pursuant to a specific
authorization signed by patient, the insurer's counsel is entitled to
inspect it.  Some claimant's lawyers will not send correspondence they
don't want other side to see because they do not know whether the provider
will care about confidentiality.

The patient information obtained by carriers can end up in a huge database
like the MIB, Medical Information Bureau, and be available to any insurance
company who asks for it, pays for access, whatever.  I am informed there
are other ins. databases shared by companies but it is difficult to confirm
what is going on.  They consider it private and confidential- nice irony.
Best advice, I think, is to have your attorney give you an opinion as to
what is or is not required in your state or under applicable federal law.
Counsel for your state's Medical Society or whatever your official
governing board for physicians is called, may be able to help you sort this
out, also.

C.R. Hassell, Jr.
WC Atty.
Raleigh, NC