ConfidentialityConsentSexual

Harassment

LJ Perrot MD, JD

Confidentiality

“State or quality of being confidential (intended to be kept secret); treated as private and not for publication”

Black ‘s Law Dictionary

Physician/Patient Privilege

Ark. Rules of Evidence 503; 510; 511

“a privilege where the physician may refuse to divulge in a legal proceeding information in a patient’s medical record or any ‘confidential’ communications made between him and a patient for the purpose of diagnosis and treatment of the patient’s physical, mental, or emotional condition.”

“the physician patient privilege of confidentiality

belongs to the patient”

Historical evolution:

English Common Law-All gentlemen --right (“privilege “) to resist coercion-Lawyer/client relationship-Husbands/wives --perjured testimony

Medical Privilege Statute-passed in New York in 1828 ”specifically granted doctors the right to refuse to testify because confidentiality was needed for good medical care”

Elements of Physician/Patient

Privilege: Professional member of

relationship must be present-for purposes of Rx and this fact must be know to the patient

Information must be acquired while attending patient during course of treatment -if info is obtained by professional in some other way privilege does not apply

Information must be necessary for treatment

Hypo #1

A 23-year-old white male is brought to the ER. He tells the physician that he is at fault for causing the accident in which he broke his femur.

Q: Can the physician disclose the fact that the patient stated he was the cause of the accident?

Hypo #1

Third Element:“Information must be

necessary for treatment”

-if info given by the patient deals with non-medical

matters the info is not privileged

-the statement that he caused the accident in not needed for medical treatment so

no privilege exists

Hypo #2

While examining the 23-year-old accident victim a heroin pack falls out of his sock.

Q: Does the physician/patient confidentiality privilege exist?

Hypo #2 Third Element:

“Information must be necessary for treatment”

-observable facts such as those that a lay witness might observe are not privileged

-the fact that the patient had a heroin pack in his sock is not necessary for treatment so privilege does not apply

Hypo #3

A patrolman asks the physician for a description of the clothes worn by the accident victim.

Q: Can the physician disclose this to the patrolman?

Hypo #3 Third element:

‘Information must be necessary for medical

treatment’ -observable facts such as

those that a lay witness might observe are not

privileged -the description of the clothing is not necessary

for medical treatment and could be given by a lay

person so not privileged

Hypo #4

A patrolman asks you to describe the auto accident victim’s clothing and there is obvious pellet spray from a GSW.

Q: Can you disclose this to the patrolman?

Hypo #4 Third element:

“information must be necessary for medical

treatment” -the fact that there is pellet

spray suggestive of a crime does not prohibit the physician from disclosing the description of the victims clothing b/c it is not necessary for medical treatment and could be given by any lay witness

Hypo #5

The accident victim is suing the guy who shot him for recovery of his injuries. The victim doesn’t want you to disclose the fact that he said he was the fault of the accident in the first place.

Q: Can the physician disclose information about the victims physical condition? And the fact that the victim said he was at fault?

Hypo #5 RE: Physical condition

Rule: When the patient has

put his physical condition in issue there is no privilege protecting release of info about his physical condition

RE: Pt’s admission of fault

Third element “Information must be

necessary for treatment” for privilege to apply

Hypo #6

You examine the auto accident victim and find no serious injuries. As he leaves he tells you that he now intends to go and blow the other guy away?

Q: Is this privileged information and does the rule of confidentiality apply?

Hypo #6 Exception:

“Credible threats made by patient’s to harm themselves or others

invalidates the doctor/patient

confidentiality rule -physicians are held

responsible for taking precautions to protect the

intended victim

Exceptions and implied waivers:

Pt puts physical condition in issue-e.g. where he sues for personal injuries

Criminal proceedings In aid of wrongdoing

-physician’s assistance sought in aiding a criminal act or tort

Dispute between Dr./Pt-breach of duty: malpractice, failure to pay bills

Agreement to Waive -contract (life insurance policy)

How Does this affect you?

Medical Records

“strictly” confidential and may not be released without pt’s written authorization and consent

may not be removed from hospital except by court subpoena Ark. Dept. of Health Regs0601.U-W

Medical Research

“All information, interviews, reports, statements, memoranda, or other data … which are used in the course of medical studies for the purpose of reducing morbidity or mortality , …, shall be strictly confidentiality”

ARK 20-46-103(a)

Mandatory Physician Reporting:

incidences of communicable diseases

GSW’s Knife wounds Adult abuse Child abuse sexual abuse SIDS

Communicable Diseases:

HIV AIDS Sexually transmitted

Diseases-Lab notifications are confidential and the identity of persons participating in the Dept. of Health AIDS testing program must be kept secret

Ark. Code Ann.$$20-16-504; 20-15-901

Knife and GSW’s Immediate notification of

law enforcement agency-failure: Fine $10 -$100-Must report: 1) name 2) age 3) sex 4) race 5) location of person injured 6) names of person(s) bringing pt in for treatment Ark. Code Ann. $$ 12-12-601- 603

Adult Abuse “suspicions” must be

reported to Central Registry, Adult Protective Services, Div. Of Aging and Adult Services, Dept of Human Services-”good faith” immunity from liability and suit for damages-failure to report is a Class B misdemeanor; may be liable for monetary damages consistent with harm suffered by pt.

Ark. Code Ann. $$ 5-28-101, 201-206, 208-209, 211, 215

Child Abuse Reportable to Central

Agency or law enforcement official-”good faith” immunity from

liability and suit for damages-failure to report: Class C misdemeanor; may be liable for monetary damages consistent with the harm suffered by the child

“Child” - someone who is < 18yrs or who is <21 yrs but is subject to the jurisdiction of the courtArk. Code Ann. $$ 12-12-501, 503-505, 507-508, 514

Sexual Assault

Includes: -rape-attempted rape-any other type of sexual assault-incest

Ark. Code Ann. $ 5-26-202

Sexual Assault < 18 yrs

-must be reported to

Central Agency or law enforcement agency (treated similarly as suspected victims of child abuse)

Ark. Code Ann. 44 12-12-401-405

Adult1) makes decision whether to report to

agency; if opts to report the phy reports

2) medical Tx cannot be conditioned on victim reporting 3) Tx’d as regular ER

patient 4) Evidence can only

be collected with victims permission unless unconscious, mentally incapable of consent or intoxicated

SIDS

must report to County coroner or sheriff within 24 hrs. of discovery of death

Ark. Code Ann. $$ 20-15-502-504

Mental Illness

Pt communications with their physicians are privileged with limitations-limited protection is afforded to communication relating to Dx and Tx

Ark. Code Ann. $16-41-101; $ 20-46-104; Ark. Rule of Evidence 503

Elevator Talk

“discussion of details of patients medical histories among health care workers in a public setting such as elevators (hospital cafeterias, cocktail parties, …)”

Type of Comment and Occupation of Employees Making Inappropriate

Comments

Type of Comment MD RN Other Clin Nonclin UnI.Dviolatedpt confid 11 2 2 2 1Unprofremark 3 6 1 0 1Poor qualof care 0 1 0 5 2Critical ofpatient 2 2 0 0 1TOTAL 15 10 3 7 5 -259 one-way elevator trips where 39 inappropriate comments were heard on 36 of the ridesUbel et al: “ elevator Talk: Observational Study of Inappropratte Comments in a Public Space”, Amer J of Med Vol 99, August 1995

Harassment 5-71-208(a): a person commits the offense of

harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he:

(1) Strikes, shoves, kicks, or otherwise touches a person, subjects him to offensive physical contact or attempts or threatens to do so; or

(2) In a public place, directs obscene language or makes an obscene gesture to or at another person in a manner likely to provoke a violent or disorderly response; or

(3) Follows a person in or about a public place; or (4) In a public place repeatedly insults, taunts, or

challenges another in a manner likely to provoke a violent or disorderly response; or

(5) engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose; or

(6) Places the person under surveillance by remaining present outside his or her …place of employment, vehicle, other place occupied by the person, or residence, other than the residence of the defendant, for no purpose other than to harass, alarm, or annoy.

Sexual Harassment

Employee’s- Title VII Civil Rights Act of 1964 $703

Student’s-Title IX Education Amendments of 1972

Forms of Sexual Harassment:

1) Quid pro quo -making conditions of employment (hiring, promotion, retention,…) contingent of the victims providing sexual favor--i.e.

“sleep with me or your fired” Heelan v. Johns Manville Corp.,

451 F. Supp. 1382 (1978) “If your nice to me I’ll give

you a good evaluation so the Doctor will promote you and give you the raise”

-applies to “agents” (vicarious liability)

2) Hostile working environment

“speech and/or conduct of a sexually discriminatory nature which is neither welcomed nor encouraged, committed by or permitted by a superior, which would be offensive to a reasonable person as to create an abusive working environment and/or impair his/her job performance”

Elements: 1) “speech and/or conduct” 2) ”of a sexually discriminatory

nature” 3) “which is neither welcomed

nor encouraged” 4) “committed by or permitted

by a superior” 5) “which would have been so

offensive to a reasonable person as to”

6) “create an abusive working environment and/or”

7) “impair his/her job performance”

“speech and/or conduct”

- mere words --”dumb ass” Harris v. Forklift Systems, Inc.,

114 S.Ct. 367 (1993)

-words and conduct --asking employee to dig coins

out of one’s own pants pocket Harris

-conduct alone --”fondling a woman’s

breasts” Weeks v. Greenstein

Sexual Misconduct/Harassment

actions against physicians: 1) inappropriate touching

-patients or staff 2) unusual breast exams while

undraped or standing 3) pressing in against a patient with

an erection felt

4) hugging or kissing patients as part of therapy

5) discussing examination of patient’s

genitalia to nurses or technicians after the exam

6) exams not chaperoned 7) seeing patient alone in office after

hours or socializing with patients after hours

“ of a sexually discriminatory

nature” Issue: Whether that speech or

conduct is directed at the employee on the basis of his/her gender

OR has a disparate impact on

the basis of gender

NOT: content of the speech or the precise nature of the conduct

Title VII is a discrimination law NOT a SPEECH Code

“which was neither welcomed nor encouraged”

Victim must subjectively have been offended by the speech/conduct

Harris -CAN’T CLAIM LATER AFTER YOU GET

FIRED THAT even though you weren’t offended at the time that A REASONABLE PERSON WOULD HAVE BEEN

-- [not based on reasonable person standard]

If Defendant (employer) can show that the plaintiff (employee) welcomed and/or encouraged the speech/conduct -- NO DISCRIMINATION

“committed by or permitted by a

superior”

Plaintiff must show that his/her superior “knew or should have known” about the speech/conduct and did not intervene

--means that an “ordinary, reasonable prudent person in like or similar circumstances” would have know

-If supervisor is the one doing the harassing -- requirement met

-Supervisor can’t claim that he is a lousy supervisor and didn’t know so he can’t be held liable

“would have been so offensive to a reasonable

person” Key: reasonable person -not enough that the employee was offended (he may be unusually sensitive or thinned skin) but another reasonable person would have been

offended -plaintiff can’t argue “well I

know a reasonable person would have shrugged this off, but I’m not reasonable”

-Harris did away with the reasonable woman standard

“create an abusive working

environment”

-”an environment where the employee is distinctly made to feel unwelcome, unwanted, scorned, ridiculed, intimidated

… on the basis of his/her gender”

--underlying theory: --- harasser is attempting

to get the victim to either quit or screw up enough to get fired

and/or “impair his/her job

performance” The speech or conduct is so

offensive that a reasonable person’s job performance would be impaired

-trying to make life so miserable that the victim will screw up enough to get fired

i.e.: Defendant Doctor fired Vicki citing the reason for her firing “she didn’t get the filing done in a regular and orderly manner”

Vicki can recover if she can show that the filing room is next to the men’s bathroom and every time she went to file Dr X was there and kept saying “C’mon in and file this , sweetcakes!”

A business person can

protect him/herself by developing a

sexual harassment

policy which is consistent with

the law

Jury awards $2.3 million in amputation case

A federal jury awarded > $2.3 million in damages to a man who said his penis and left testicle were removed without his consent during surgery for an infection.

-Rogers claims that he was admitted three times in 1997 for treatment of an infected cyst in one of his legs. The infection later spread to his groin and he underwent surgery to remove the cyst and other infected areas. He claimed that he was never told that amputation was a possibility during surgery.

Rogers v. Peterson and Slocum 2/7/00 Bowling Green Kentucky

Consent:

“Voluntary agreement” by a person in possession of sufficient mental capacity to make an intelligent choice to do something proposed by another

Informed Consent:

“Consent given by the patient based on knowledge of the nature of the procedure to be performed by the physician as well as the risks, possible complications, benefits, and alternatives to the planned procedure”

Informed Consent Guidelines:

1) an explanation of what is involved, including possible complications, risks, any expected temporary discomfort, disfigurement, or disability, …

2) any permanent results including scarring, creation of a stoma and required care, …

3) probable outcome 4) benefits 5) alternatives

The standard of care for informed consent

in Ark.:

A physician has a duty to provide information regarding the treatment, procedure, or surgery as would customarily have been given by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the physician practices or in a similar localityArk. Code Ann. $16-114-206:

Malpractice Classifications:

1) acts of negligence, error, or omission 2) failure to obtain informed

consent, or a breach of warranty or contract

3) failure to diagnose 4) premature abandonment of a

patient or premature cessation of treatment

5) failure to properly maintain equipment 6) any other acts during the

course of service that causes injury

Who may consent for Surgical or Medical

Treatment: 1) any adult or married minor for

themselves; 2) emancipated minors, for

themselves; 3) unemancipated minors of a

sufficient intelligence to understand and appreciate the consequences of the proposed treatment for themselves;

4) parents for their minor child, or adult child of unsound mind;

5) females regardless of age, for themselves, when given in connection with pregnancy or childbirth -- except for abortion;

6) persons in loco parentis and guardians, conservators, or custodians, for their ward or other charge

Can the illegitimate

father of a child consent to a

child’s treatment?

If he is relying solely on the

basis of parenthood

NO!

Consent for Medical or Surgical Treatment 7) adults for their minor sibling

or adult sibling of unsound mind

8) grandparents, in the absence of an authorized parent for their minor grandchild or adult grandchild of unsound mind

9) married persons for a spouse of unsound mind;

10) adult children for their mother or father of unsound mind; and

11) minors incarcerated in the Department of Correction or Department of Community Punishment

Ark. Code Ann. #20-9-601 - 602

Hypo:

Can a separated woman who is a Jehovah’s witness and has recently given birth by cesarean section and experienced heavy blood loss refuse further medical treatment (blood transfusions)?

What would you do as the doctor?

In re Matter of Dubreuil

Court held: The responsibility of the

state to protect children from becoming parentless outweighs the patient’s constitutional right to refuse medical treatment

629 So.2d 819 (FA 1993)

Court Consent: Consent given by a

court in an emergency situation when those who are authorized refuse to do so

-requires petition: containing the physician’s declaration that in his professional opinion there is an immediate or imminent necessity for medical or surgical treatment

Implied Consent: Presumed: -when an emergency exists

and the person authorized to consent isn’t available

-when an emergency exists and the person authorized to consent has refused to consent, and no other authorized person is available, and the patient subsequently has suffered a material and morbid change in condition

Ark. Code Ann. $ 20-9-603