I would also add to Dale's email that, unlike Dr. Fairley's
initial situation in which providers are sending PHI to non-treating pharmacies
(i.e., they have no relationship to the patient at the time of the disclosure),
in the case that John is describing, it would appear that the appropriateness of
the disclosure would depend upon the "facts" of the case.
That is, is disclosure to a particular person likely to provide
information that would be used in treatment; if not then a court would
wonder why the disclosure.
If the information is to be used for treatment and there is an
established process that supports this disclosure/use then an
attorney has a better argument that the disclosure is properly "for
treatment purposes."
Thus, apart from the answer to the question coming from a court
case, an entity wants to set up for the possibility by identifying these
situations and, if warranted, establishing a policy for its response. This
process reduces the risk of uncertainty in litigation at the very least (it may
not be the right answer, but does provide a clear standard that can be brought
to the court if necessary)
Moya T. Davenport Gray, Esq.
1283 Honokahua Street
Honolulu, Hawaii 96825
808-396-6731
808-381-3732
--------Original Message-----Sounds like some undue stress on a question that probably cannot be answered out of court. The regulatory language provides for no end of possible interpretations and we can only guess at what the courts will decide -- and they get the advantage of a specific set of circumstances (and, I think dice or chicken bones to aid in the decision).
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Sunday, November 02, 2003 4:55 PM
To: WEDI SNIP Privacy Workgroup List
Subject: Re: is this practice O.K.?
If the situation is viewed as a balance between the harm done and the benefit gained, it may be possible to make an educated guess. For example, searches are, by definition, an invasion of privacy. To search without prior approval from a judge, you need some urgent factor to outweigh the violation -- immediate risk to life, etc. There is a long list of court cases weighing the harm against the claimed urgency. That has not cleared up things much, but there are some useful clues.
Would it make sense to look at why the release of PHI is happening? What weighs against infringing on the patient's rights? If it is simply a matter of gaining identification, that would not seem terribly urgent. If the harm (release of information without permission) was to prevent the spread of some life threatening virus that would seem to justify doing things that simply identifying a suitable payer would not.
In short, if the patient is comatose (which sounds stable to the nonmedical folk), why wouldn't you ask a judge? They have the power to make decisions on behalf of people not able to decide for themselves. It is also much harder to get in serious hot water if you can claim you did it "because the judge said it was OK."
I have broken similar rules when I believed the circumstances warranted it and would do so again, but I can't claim it was wise -- simply a strong wish to see the person upright again -- even if in court.
Dale K. Howe, PhD
Grand Rapids, MI, USA ---
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