[Med-privacy] "Oregonian" story

[Peter Marshall]

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MEDICAL PRIVACY
A breach of trust and law in medical care
Thursday, February 16, 2006
The Oregonian

The Sunday Oregonian exposed the past practice of several Portland-area=20=

hospitals that took the placentas from mothers following problematic=20
births and sent them to a private lab for analysis. The purpose? To=20
defend themselves against potential lawsuits claiming hospital or=20
physician negligence.

Only after filing a lawsuit did patients learn of this practice and the=20=

results. They weren't told by their physicians, they weren't billed for=20=

the work, nor were they fully informed about their children's condition=20=

or possible treatments.

Some experts cited in the story argued that this did not violate=20
federal or state laws. That's wrong.

Federal law protects the privacy of patient records. Hospitals and=20
physicians may share information only to the extent necessary for=20
treatment, payment and operations. In the cases reported, the sharing=20
clearly was not for those purposes. Indeed, it was bodily material, not=20=

information, that was shared, and not with those involved in patient=20
care but to a separate lab for eventual use by attorneys. In at least=20
one case, the U.S. Supreme Court has held that secret testing to see if=20=

pregnant women were using cocaine violated their constitutional rights.

Under state law, health care providers are similarly constrained as to=20=

privacy and confidentiality. Perhaps most important, by explicit=20
statute in every state, providers must explain the procedures and=20
alternatives and risks of health care beforehand to obtain "informed=20
consent," including for tests and test results. Since the 1890s, it has=20=

been elementary law that a patient has the right to decline health care=20=

of any sort, especially that affecting his or her body and its=20
materials.

Suppose a mother has a genetic or physiologic condition, and her=20
physicians don't tell her about it and she becomes pregnant again. Or=20
an inquiry shows misconduct by a physician, and he goes on to hurt=20
future patients. In both instances, court decisions have been clear:=20
There is an obligation to protect against future harm. It is the=20
attending physician whom the patient trusts to protect her in the=20
health-care maze; it is part of any physician's ethical duty to do so.

Hospitals, as a standard part of their operations, file incident=20
reports in difficult cases. They should be flagging these for review by=20=

their morbidity and mortality or tissue committees. The results would=20
then be available to patients. In the cases The Oregonian reported, the=20=

hospitals, physicians and insurers attempted to hide vital facts behind=20=

a separate, secret corporate veil.

The lawyers we should worry about are not those who represent injured=20
patients, but those who set up a shell company whose purpose is=20
deception and deceit. Did they have no awareness that taking evidence=20
surreptitiously from one party -- and depleting it during analysis --=20
for the benefit of their clients has been, for decades, unethical?

At bottom, what is most troubling in these cases is that, at a=20
vulnerable time, when a woman and her newborn have just experienced one=20=

of life's most difficult passages, they placed their trust in the hands=20=

of the hospital and physician who pledged to care for them and -- as=20
part of the Hippocratic oath -- to do no harm.

And at that precise point, they were secretly willing to do just that.

Arthur B. LaFrance teaches courses in health-care delivery and=20
bioethics as a professor at Lewis & Clark Law School .

=A92006=A0The Oregonian=

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<=
bold><fontfamily><param>Helvetica</param><color><param>D2D2,0000,0000</par=
am><bigger><bigger>MEDICAL
PRIVACY</bigger></bigger></color><bigger><bigger>

</bigger></bigger><smaller>A breach of trust and law in medical
=
care</smaller></fontfamily></bold><fontfamily><param>Helvetica</param><sma=
ller>=20

<x-tad-smaller>Thursday, February 16, 2006

</x-tad-smaller><bold><x-tad-smaller>The
Oregonian</x-tad-smaller></bold><x-tad-smaller>=20


</x-tad-smaller>The Sunday Oregonian exposed the past practice of
several Portland-area hospitals that took the placentas from mothers
following problematic births and sent them to a private lab for
analysis. The purpose? To defend themselves against potential lawsuits
claiming hospital or physician negligence.


Only after filing a lawsuit did patients learn of this practice and
the results. They weren't told by their physicians, they weren't
billed for the work, nor were they fully informed about their
children's condition or possible treatments.


Some experts cited in the story argued that this did not violate
federal or state laws. That's wrong.


Federal law protects the privacy of patient records. Hospitals and
physicians may share information only to the extent necessary for
treatment, payment and operations. In the cases reported, the sharing
clearly was not for those purposes. Indeed, it was bodily material,
not information, that was shared, and not with those involved in
patient care but to a separate lab for eventual use by attorneys. In
at least one case, the U.S. Supreme Court has held that secret testing
to see if pregnant women were using cocaine violated their
constitutional rights.


Under state law, health care providers are similarly constrained as to
privacy and confidentiality. Perhaps most important, by explicit
statute in every state, providers must explain the procedures and
alternatives and risks of health care beforehand to obtain "informed
consent," including for tests and test results. Since the 1890s, it
has been elementary law that a patient has the right to decline health
care of any sort, especially that affecting his or her body and its
materials.


Suppose a mother has a genetic or physiologic condition, and her
physicians don't tell her about it and she becomes pregnant again. Or
an inquiry shows misconduct by a physician, and he goes on to hurt
future patients. In both instances, court decisions have been clear:
There is an obligation to protect against future harm. It is the
attending physician whom the patient trusts to protect her in the
health-care maze; it is part of any physician's ethical duty to do so.


Hospitals, as a standard part of their operations, file incident
reports in difficult cases. They should be flagging these for review
by their morbidity and mortality or tissue committees. The results
would then be available to patients. In the cases The Oregonian
reported, the hospitals, physicians and insurers attempted to hide
vital facts behind a separate, secret corporate veil.


The lawyers we should worry about are not those who represent injured
patients, but those who set up a shell company whose purpose is
deception and deceit. Did they have no awareness that taking evidence
surreptitiously from one party -- and depleting it during analysis --
for the benefit of their clients has been, for decades, unethical?


At bottom, what is most troubling in these cases is that, at a
vulnerable time, when a woman and her newborn have just experienced
one of life's most difficult passages, they placed their trust in the
hands of the hospital and physician who pledged to care for them and
-- as part of the Hippocratic oath -- to do no harm.


And at that precise point, they were secretly willing to do just that.


Arthur B. LaFrance teaches courses in health-care delivery and
bioethics as a professor at Lewis & Clark Law School .


<smaller>=A92006=A0The Oregonian</smaller></smaller></fontfamily>=

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