Thursday, December 20, 2007

Patient Privacy, Gratuitous Nastiness, and the Ubiquitous Tort Lawyers

KevinMD has posted about a news article dealing with a privacy issue that doesn't come up too often. A chief resident of general surgery took a picture of a patient's penis while he was under general anesthesia.

There were three problems with this incident:
  • The patient did not consent to or know about the photograph (he was unconscious).

  • The photograph was not used for the purposes of medical education but rather for its "check this out!" factor.
Federal privacy regulations (the Health Insurance Portability and Accountability Act or HIPAA) have surely been violated. It is acceptable to disclose a patient's medical data (including photographs) if the patient's data is "de-identified" or the patient's consent is obtained; and the information is used for academic purposes.

De-identified means that the information is stripped of 18 parameters defined by HIPAA such as name, address, etc. The 18th is, "Any other unique identifying number, characteristic, or code..." (emphasis mine). The man had a tattoo on his penis that said "Hot Rod" and unless I'm seriously unhip, it's fair to say that his tattoo would be considered uniquely characteristic.

In addition, the photograph was not taken for medical education or research but rather to be passed around the campfire for its "entertainment" value.

This resident is in a LOT of trouble. He violated federal law and surely his hospital's formal bylaws. More importantly, he violated standards of basic human decency. Apparently however, he did try to make amends. He apologized to the patient and also appeared to form a close bond with him. The patient in fact "had been terrified about the impending surgery and said he had formed a 'bond' with Hansen (the resident), who helped him stay calm."

The resident's institution suffered a public relations nightmare and an expensive one. HIPAA violation fines can be quite expensive. I also assume there'll be a major lawsuit or a large settlement. The victim has obviously been coached by an attorney and is using the "correct" language with the press:
"But now I feel violated, betrayed and disgusted. I've never been in a hospital and (my) first experience is the worst thing ever."
There was once a time when such a act would have been handled with an apology and some form of disciplinary action, possibly getting fired. Such times now seem a quaint anachronism. Frankly, I hope his young physician has learned a serious lesson. To be honest though, I hope this example of emotionally retarded behavior doesn't end his career.

Update: The Blog That Ate Manhattan has a more insightful post than mine. Of course the "whistle blower" committed a more egregious HIPAA violation than the resident by going directly to the press (HT Kevin MD)

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Anonymous Anonymous said...

It appears that the patient wasn't contacted until *after* Mayo became aware of this incident, most likely through a call from the news media seeking comment. Nothing like a little public pressure to force the doc and Mayo to apologize.

One has to wonder what would have happened if someone had not gone to the news media with this story. Would the patient ever have been told, or would he ever have received an apology? Probably not.

I have to disagree that things were handled in the past with a simple apology. In the past, patients simply were not told anything, and egregious behavior was quietly swept under the rug.

I genuinely don't think the surgical resident should have been fired. Suspended for a few weeks, perhaps, but I suspect he's become the fall guy for this public relations disaster.

Then again, maybe this isn't the first time the resident has done this. Maybe someone on the surgical team just got fed up and decided to blow the whistle. Maybe the accompanying conversation was so derogatory and so juvenile that someone felt something should be done. Maybe two or three people on the surgical team believed the doc should be ratted out, and agreed to have one of them make the phone call.

Most likely there is more to the story than what we're hearing.

December 24, 2007 7:48 AM  
Anonymous Anonymous said...

There is something you are not hearing. This crap
happens all the time,and mostly committed by female nurses.

May 12, 2012 8:46 PM  

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