confidentiality consent sexual harassment lj perrot md, jd
TRANSCRIPT
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“State or quality of being confidential (intended to be kept secret); treated as private and not for publication”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.”
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)
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
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