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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32364
Experience:  Began practicing law in 1992
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A child is a patient at a psychiatric facility. The psychiatrist

Customer Question

A child is a patient at a psychiatric facility. The psychiatrist inquired of the parent's psychiatric history and wrote it into the child's medical record. The patient is the child. The parent's medicines and history were placed in the child's record. Is this a violation? What can be done?
Submitted: 1 year ago.
Category: Legal
Customer: replied 1 year ago.
What has been done?
Nothing has been done at this writing because we have not yet determined if a violation has occurred. There is grave concern how to proceed.The other, i.e.., non-reporting parent at any time could gain access to the child's record and see PHI from the reporting parent. The physician, when questioning the reporting parent, did not give warning that the reporting parent's information would be commingled in the child's medical record. The reporting parent did not authorize for the reporting parent's PHI to be placed in the child's medical record. The reporting parent is uncertain how to proceed. The child is age 11.How can one know if this is a violation and what can be quickly done to have reporting parent's PHI removed permanently? The other parent (non-reporting parent) may soon gain access to the child's record which would be harmful. Again, the child's medical record contains PHI of the reporting parent.We want to know what is the best next step to protect the reporting parent's psychiatric history from being disclosed via the child's medical record. If inadvertently written into the child's medical record what should and can be done quickly?Determining first if a violation has occurred is desired, then advice for next step. It needs to be done quickly with hopes the child within the facility will not be retaliated upon due to the reporting or by the physician behaving in a retaliatory fashion against the child. The child is at the mercy of the same inpatient treating physician.
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Legal Discussion by Email. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Have wecontacted the wrong law specialty. Perhaps family law does not have this person
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Dwayne B. replied 1 year ago.
Like most of the experts in the Legal category I don't do phone calls due to issues with the State Bars, etc. Would you like for me to try and assist you in this format?
Customer: replied 1 year ago.
Pls and kindly outreach me in this format if you believe you are qualified in this arena, which I'm sure you are.
Expert:  Dwayne B. replied 1 year ago.
I'm very familiar with HIPAA and have been since it was first proposed. However, I've never seen an issue quite like this.Your information is protected health information just as the child's would be and the health care provider should obtain a release from you before revealing your information contained in the records.However, I don't know of any offices that have a system in place to prevent a release of info within info and so I'd say the chances of your information being accidentally released are very high.What I'd suggest you do to prevent this from occurring is to have a local lawyer write a letter on your behalf to any entity who has these records indicating that the child's records contain your records as well and specifically instructing them that your information is not to be released without a specific written release from you and that they reply with their explanation as to what type of procedures they will put into place to protect your information.You may also want to have the lawyer also note in the letter to the psych who obtained the info from you that you were not aware that info would be placed into another person't medical records, did not consent to its use for that purpose, and want it to be removed completely and not re-entered without specific written permission from you.You can also examine with the attorney whether you want to pursue a complaint against the psych who entered your data without your permission. I don't know that the action was a breach of their ethical duties, it wasn't a breach of HIPAA, but it certainly could have been an ethical issue and might be something you would want to pursue.
Customer: replied 1 year ago.
Dear Mr Dwayne
Thank you for your reply.
I hope this method to pursue having my records corrected and or redacted could work. What type of law practice would I be seeking family law, health care law or what is the specialty?Also, my question is this: you seem fairly certain this is not a HIPAA violation. Please elaborate on why you believe this is not a violation.Why would it not be a HIPAA violation as I did not intend nor authorize disclosure for my health history to be placed into my child's records?
I understand history gathering plays a role in diagnostics.
However, data that is gathered does not always have to point to a person per se, it can be de-identified - as in applying a more ethical and sensitive use of collateral data gathered.
For example saying, "there may be a family history of PTSD and MDD". Certainly this type of wording de-identifies the individual, softens the potential for harm and protects the dignity of the collateral reporter, ie., the parent. Isn't this what HIPAA was all about?Also, will going to risk management department – would that be an option or would the facility be more defensive and it would be less productive for me? This is only speculative answer. Please kindly speculate to this regard, also.Is any of this a reasonable ethical expectation?
Kindly advise on these points and elaborate anywhere you can.
Thank you very much.
Expert:  Dwayne B. replied 1 year ago.
No one really specialized in this type of law from the patient's side, just from the healthcare provider's side and they are ridiculously expensive so I'd suggest just looking for someone who does civil litigation. They would have the correct skill set. It wouldn't be a HIPAA violation since 1) you provided the information and 2) it isn't "disclosed", it's just placed in the records. There is just no specific statutory language that covers this scenario and the case law on HIPAA is very sparse because no private lawsuits are allowed. Going to risk management might get results but it has been my experience that the medical providers, once you get above an individual level, don't really respond to requests from an individual. Once you get a law office involved they take it seriously and they will turn it over to their lawyers who will realize they are being "set up" for a complain if they fail to take requested precautions and so it is more likely to get done.