Truthfulness and Confidentiality, Ch. 5

1
Legal Issues

• Truthfulness and Confidentiality, Ch. 5

2
Confidentiality

• HIPAA (1996)
• Health Insurance Portability and Accountability
  Act
• Effort to codify and give national conformity to
  the use of confidential patient information
• Statutory Disclosure
• HIPAA reinforces legal requirements to release
  information regarding
• Venereal disease
• Poisonings
• Industrial accidents

3
Statutory Disclosure

• Statutory Disclosure (cont.)
• Abortions
• Drug abuse
• Abuse of
• Children
• the Elderly
• the Disabled
• These legal duties to disclose may extend to
  imagining professionals, state to state. Check
  with your employers risk manager

4
Duty to Warn
Tatiana Tarasoff
Prosenjit Poddar

• Duty to Warn Third Parties
• Read both scenarios on p105
• Regarding Tarasoff case
• The duty to warn an endangered third party
  requires that the party is specifically
  identified (no duty to warn everyone someone
  knows who sounds violent)
• The duty to warn an endangered third party is
  called a Tarasoff duty
• Only Texas and Virginia have rejected the
  Tarasoff duty
• Some jurisdictions have expanded the duty to warn
  beyond those specifically identified by the
  would-be assailant

5
Duty to Warn

• Duty to Warn Third Parties (cont.)
• Note the discussion, final paragraph, of the
  imagining professionals potential duties to warn
  third parties of contagious disease threats of
• Family
• Neighbors
• Anyone physically intimate with patient
• Again, imagining professionals have to check with
  employer policies in place note the AIDS
  discussion on p107

6
Patient Access to Records

• Patient Access to Medical Records
• HIPAA has extended the rights of patients to view
  what you write about them
• Some exceptions to that right to their own
  medical records exist, depending on jurisdiction
  (some do not have the right to notes taken in
  anticipation of a lawsuit, for instance)
• Parents generally have the right to view the
  medical records of their children

7
Torts and Confidentiality

• Breach of Confidentiality
• Simply note that courts do award cash to victims
  whose medical secrets are exposed via
• Oral
• Written
• Computer communication
• The legal basis can be
• Statutes defining expected conduct
• Ethical duties owed to patient
• Breach of fiduciary duties
• Breach of contract or implied contract between
  doctor and patient

8
Torts and Confidentiality

• Defamation
• A tort of defamation is based on the right to
  maintain a good reputation. p109
• Defamation can only be claimed if the statement
  that defames is false
• Oral defamation is slander
• Written defamation is libel
• Standard of legal liability is negligence
• Harm must be demonstrated to succeed in a claim
  of defamation

9
Torts and Confidentiality

• Defamation (cont.)
• The requirement to demonstrate harm is satisfied
  without need for additional information in these
  cases
• Criminal activity
• AIDS
• Venereal disease
• Business, trade, or professional misdeed, or
• Unchastity
• Such cases are called
• Slander per se
• Libel per se
• (per se means by themselves)