Hip Replacement Legal

DEAR READERS: Do you have a legal question on your mind? If so, please email me. Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Dear Debra: Last month I underwent a hip replacement. My doctor prescribed multiple medicines. The pharmacy called my home about a prescription refill and my brother-in-law, who was visiting, answered the phone. They talked in detail about my surgery and how I was recovering. I like my brother-in-law but I felt violated. Is this an invasion of my privacy?

Signed: Hot-Headed Hipster

Dear Hipster:

Given today’s fast-paced, technologically driven society, dotted with drones, sensitive electronic surveillance, and over-reaching entities, it is a miracle that the concept of “privacy” even prevails. I suspect if we had even an inkling of who was watching whom, we would all feel violated. But, not to worry…when it comes to health or medical information, there is a well-tested framework of a federal law in place. It is called HIPAA (Health Insurance Portability and Accountability Act of 1996).

Now, we all have heard about HIPAA. Every time we go to a doctor, clinic, pharmacy, or hospital we are always given a copy of their HIPAA policy, which I suspect very few of us read…it ends up in File 13. HIPAA is a federal law, a complex web of policies and practices that is overseen by the U.S. Department of Health & Human Services and enforced by the Office of Civil Rights (“OCR”). The basic concept is that YOU as the patient are always entitled to see and correct your own medical records. Because it is sensitive medical information, the law is also designed to limit who can and cannot see and share your information.

By federal law, your sensitive health information can be used and shared for specific reasons not directly related to your care, like reporting when the flu is in our area or assessing whether your doctor or nursing home is practicing good medicine. You do have the right, though, to request that your health information not be shared with specific people, groups, or companies.

First, let’s address family members. A health care provider may share your information with a family member or even friends involved in your health care IF you tell them they can do so OR if you do not object. You can also appoint a “personal representative” who is entitled to receive sensitive health information.

If you did not give the pharmacy express permission to talk to your brother-in-law about your hip surgery, I would argue that they violated your privacy rights, as protected by HIPAA. I would certainly call your Pharmacy and discuss your concerns.

Next, let’s talk about what rights you have at a clinic or doctor’s office. You can ask that your treating doctor not share your information with other doctors and nurses at the clinic, unless it is necessary for your care. Also, you can ask your health care provider or pharmacy not to tell your health insurance company about the care you receive or the nature of your prescriptions, if you pay for your drugs in full and your insurance company does not reimburse you.

What if you suspect a HIPAA violation? Generally, you must file a complaint with the OCR within 180 days of the suspected violation. Check out the OCR’s website at www.hhs.gov/ocr/privacy, which also offers multiple handouts on what HIPAA covers (and does not cover).

Lastly, keep in mind that HIPAA only covers certain entities, like doctors’ offices, hospitals, pharmacies, dentists, etc. HIPAA does not cover entities like Employers, Life Insurers, Workers Compensation Carriers, and some state agencies, like school districts.

Privacy. It gets complicated and enjoys differing viewpoints. At one end of the spectrum is Gore Vidals’statement, “Eventually all things are known. And few matter”. At the other extreme is Ovid’s observations, “Bene vixit, bene qui latuit”, Latin for “To live well is to live concealed”.

Debra A. Newby is a resident of Monte Rio and has practiced law for 32 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email(debra@newbylawoffice.com), phone (707-526-7200), or fax (526-7202).

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