I just saw this article on ZDNet (“How I tweeted my way out of spinal surgery“) which is just an example of how the media can make us look bad for following the law. How many times has this happened at your organization?
A patient tells an outrageous story of something that happened in your ambulance or ER. It’s outrageous: If it really happened the way they said, you’d be firing people right and left and doing a root cause analysis. What’s more outrageous, is that it didn’t exactly happen that way, and so the conclusions everyone is coming to about how your people should have reacted are inaccurate. You want to set them straight, but you CAN’T. Because in order to tell them why you never gave Mrs. Bad Outcome the drug she says she needed is because she told you she was allergic to it. And you are prohibited by law from disclosing that bit of information! Unless the patient signs this little form, which they never get back to you until the end of the next news cycle when it’s too late. Everyone thinks you are hiding behind your lawyers and if you really didn’t do anything wrong you would just call the patient’s bluff. But since you say “HIPAA prevents me from responding,” they believe the patient’s version of the facts must be the accurate one.
Sometimes, your lawyers and PR people want you to just let it go. But sometimes, it’s not the press, it’s your county government or town council, or a potential business partner. In that case, their perception of your patient care in a bad (and inaccurate) light will matter for longer than the next human interest news story, and you need to respond. In those cases, we sometimes do ourselves a disservice by not expediting the signing of the release.
If your legal counsel, your board, or your management team has determined that laying all the cards on the table and defending yourself on the actual facts is the right move, you may want to avoid the “we can’t disclose this PHI” scene by taking a HIPAA compliant written authorization form to the patient at the first public complaint, so when you answer the accusations, you don’t say “we can’t tell you what happened,” but you can say “Mrs. Bad Outcome has given us permission to share this information. Let me have this cardiologist here explain how use of the drug she requested would have resulted in a worse outcome and how these three treatments we initiated here were consistent with our state protocols and the standard of care.”
Or maybe “Sorry, but even though the patient has disclosed to you her medical problems, she expressly refused to permit us to share any information about her treatment with you.” This changes the situation from “hiding their incompetency behind the law” into “patient is a trouble maker wasting my time because she won’t let the provider explain.”
Remember, keep protected health information confidential, and respect the patient’s privacy, but passive aggression is not always your friend.
