Losing the veil of confidentiality

Aug. 22, 2014

While issues regarding personal health information (PHI) are often discussed, it is becoming increasingly obvious, yet rarely acknowledged, that the confidentiality that once cloaked public and private administrators in healthcare is wearing thin.

The final judgment of George Rauchfuss v. Roger E. Shultz, MD, et al. required a hospital to disclose internal documents to investigate possible errors on the part of one of its physicians. The hospital claimed the information sought by the plaintiff was protected and privileged, however, the judge ruled the patient’s family had the right to access and evaluate the materials. When this decision is coupled with the outcome of Eason v. Sentara CarePlex Hospital, Sentara Hospitals, et al. where the presiding judge cited “an inexorable march to more disclosure” of risk-management documentation, healthcare officials would be wise to recognize how their internal policies and practices are becoming more and more likely to be exposed and exploited by outside parties, much like PHI.

This erosion of confidentiality is not limited to the area of risk management. In Vermont, Rep. Cynthia Browning is suing her state in order to learn more details about Governor Shumlin’s financing plans for the state’s single-payer healthcare system. Shumlin claims it is within the authority of his office to have used executive privilege to keep private the deliberations of two healthcare reform advisory council meetings. Brownings attorneys say the documents produced during the secret meetings are in the public interest, and the citizens of Vermont have the right to the “free and open examination” of public records even if “such examination may cause inconvenience or embarrassment.”

While Browning’s lawsuit is still pending and similar cases are being considered by judges across the country, it is clear that healthcare leaders must recognize they are entering a new era where their once back-room conversations may now become very public information. Much like the current debate involving price transparency, the general public, but more to the point attorneys and judges, are highly skeptical of organizations with practices and policies that are not in line with the rest of the field.  Healthcare organizations should feel a great deal of empathy toward their patients as they, too, are now more susceptible to the same types of loss of reputation and public ridicule due to potentially embarrassing information being open for review.

It is important to note that a possible byproduct of these legal developments could be a chilling effect upon healthcare documentation. Given that they may have to discuss private decisions as a matter of public record in court, administrators and officials may take the same fearful approach that their patients often do of offering incomplete or sanitized information in their notes and reports. Systemic healthcare problems may not be fully addressed in a timely fashion, because only loosely connected fragments of information are made available to the judges and lawmakers creating and enforcing healthcare legislation. If these instances become trends, hypothesis will take the place of diagnosis and confidentiality may take the place of care.