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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 114028
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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A young child, age 11, is a patient in an intensive

Customer Question

A young child, age 11, is a patient in an intensive inpatient psychiatric facility presently. The child's psychiatrist inquired of the reporting parent's (mother's) psychiatric history and wrote specific PHI (protected health info) of the mother into the
child's medical record citing it related to patient's mom. It specified which parent it was gathered from: "The mom has admitted of PTSD and takes the following drugs prescribed from his/her psychiatrist: 1. drug x; 2. drug y and 3. Drug z." The child's psychiatrist
discussed the mom's hastily-concluded diagnosis openly in front of the treatment team members as well as disclosed it in the electronic medical record. The patient is the child. The reporting parent's medicines and psychiatric history were placed in the child's
electronic record. Is this in fact, a violation? What can be done? We have been trying to ascertain if this is in fact a violation. If it is, we would like to have the parent's PHI removed, redacted expeditiously and never to show up again. What have you done?
Nothing has been done at this writing because we have not yet determined if a violation has occurred. There is grave concern here how to proceed. The other, i.e.., non-reporting parent (bio dad) or anyone else with access, for that matter, at any time could
gain access to the child's record and see PHI (protected health info) pertaining to the reporting parent. The physician, when questioning the reporting parent (mother) , 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 (mom's) PHI removed permanently? The other parent (non-reporting parent bio-dad) 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. What can be done to get it redacted? 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 to have it removed permanently? 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 of the physician's behavior OR by the physician's possible retaliatory behavior against the child. The child is at the mercy of the same inpatient treating physician each day and need to be wise. Please help. We felt this was an overreach for the
physician to catch the well-meaning, reporting mother in a vulnerable place by having that parent divulge her private psychiatric history; then have the physician speak of it specifically in front of others AND write professional impressions of the parent
within the child's medical record all the while specify WHICH parent the psychiatrist is writing of. Isn't it a violation for another person's PHI to be referred to, discussed and documented into another patient's record? Pls advise quickly. This question
may have gone to the wrong specialty, ie., Family Law, 1st time around. It may need to be evaluated by a Health Care Law expert instead. We have not received a reply and this is asking the same question again.
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
A patient's parent's history can be relevant to the patient's condition. So if the doctor can show that the mother's psychiatric history is pertinent to why the child is having psychiatric issues, the information would not violate any laws and would be appropriate.
Under HIPAA, the law that protects Personal Health Information, there is an exception for disclosure between medical professionals and also if the mother told the information to the doctor, that is the mother's implied consent as the mother could have refused to disclose the information to the doctor. So this is really going to be within the guidelines of HIPAA if the doctor can demonstrate that the mother's psych history is relevant to the child's condition.
Also, pursuant to HIPAA, if you believe the doctor has no justification that the patient's mother's psych history is relevant to the child's condition, your sole recourse is a report to the US Department of Health and Human Services, as they are the sole agency with jurisdiction and authority to investigate and enforce any violations under HIPAA and there is no private right to sue under HIPAA.
Customer: replied 1 year ago.
In this case, the physician could have easily advised the parent any response given could be included in the child's record, giving the parent a heads-up before divulging PHI. This is a slippery slope where a well-meaning parent disclosed her own PHI, and it got discussed in presence of other persons on the child's treatment team and as such, would this be a violation?Pls advise what is your experience in this realm. You indicate Esquire, hence J.D.? Could you refer me to counsel?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I apologize but live phone calls, unlike in other sections on JustAnswer.com, can be deemed practice of law which is forbidden by state laws as we do not and cannot represent you in any legal matter. I would be happy to continue with you in this forum if you would like to use reply. Thank you for understanding.
I handle healthcare claims on a regular basis and am indeed an attorney. We cannot make personal referrals to local attorneys, the best we can do is suggest you use the same sites used by other attorneys, http://www.hg.org or http://www.lexmundi.com
You do not need an attorney yet, you need to file your complaint with the US Department of Health and Human Services, because there is no personal right to sue anyone. If US DHHS finds a violation, they will take action against the doctor and at that point the only way you can have a personal action is suing under state law for malpractice or breach of the duty of confidentiality. The reason for this is there must be an expert determination as to whether or not this information was necessary to treat the child and only the US DHHS and/or other medical experts who review the whole file and record can make that determination.
Customer: replied 1 year ago.
I received a reply suggesting continuing online until a satisfactory answer is ok. Here it is, Law Educator, Esq:
I read the HHS form for filing a complaint. The process as outlined -seems it would take weeks or months to investigate a concern and it may involve many many hands in the pot.In the meantime, now there is some doubt now there is even a HIPAA violation, per our discussion. You are a law educator and as such, are versed in this realm. My question is how worthwhile is it to go through the hoops of HHS as it seems it could easily exhaust the complainant? We already have a difficult situation.
Would another option to go through the Risk Management department? Can you speculate if this could be different or quicker or could it potentially expose my family to further distress? Pls speak to this option and what you know of its effectiveness. I would like to request the child's record to be amended to exclude my PHI. Perhaps asking them to see what could be done may offer another option? I don't know. As you know, Risk Management would be within the facility and would that have a benefit or a disadvantage?
My hope is they will amend the record to a less intrusive disclosure. However, the physician is an adamant, rigid, new-to-psychiatry alpha female. I could easily expect she will defend her rationale as appropriate.
Can this Risk Management route be possibly effective in your speculative opinion?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
The process is what it is, we cannot help the process that HHS has set up. Yes, the process has numerous steps, to protect the patient and the provider as well. You have to go through the "hoops" as you put it for any type of HIPAA claim because the law says that HHS has exclusive jurisdiction, so they are the only one who can investigate and take action by law.
Risk management would generally take their own site to protect their entity, so usually they do not turn out in favor of the patient.
You can ask in writing that the record be amended and argue that the mother's psych history has no bearing on the child's case or treatment and as such it is irrelevant information and you are seeking for it to be removed from the record pursuant to HIPAA (which allows for incorrect or improper information to be removed or a health record to be corrected). That would be the first step. However, if the facility refuses to make the correction to the record, I am afraid HHS is really the only route to go as they are the only ones who have authority to make the hospital correct the record if they find it improper.

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