[SPEAKER_00]: Welcome back to At The Bedside.
[SPEAKER_00]: Today we're going to talk about patient privacy and confidentiality.
[SPEAKER_00]: It's a topic that might make us think of mandatory online modules, but it also comes up in meaningful ways in practice all the time.
[SPEAKER_00]: For example, if a patient shares ongoing domestic abuse, would it be a breach of her privacy to report it?
[SPEAKER_00]: What about sexually transmitted infections?
[SPEAKER_00]: And what if I took care of a patient with a really interesting presentation a few months ago?
[SPEAKER_00]: And I want to see how he's doing and to continue learning from his clinical course.
[SPEAKER_00]: Considerations around privacy and confidentiality have big ethical, legal, and practical implications and how we approach not only patients and their personal information, but also medical education, research, and public health concerns.
[SPEAKER_00]: So let's jump in.
[SPEAKER_00]: I'm Tamar.
[SPEAKER_00]: I trained as an internal medicine physician and am now a biethics researcher.
[SPEAKER_04]: And I'm job for all laundry, a medical oncologist at a Novisher Cancer Institute near Washington, D.C., and Assistant Professor
[SPEAKER_01]: And I'm Margo, a hospitalist at Harborview Medical Center in Seattle, and an assistant professor of clinical practice at the University of Washington School of Medicine.
[SPEAKER_00]: We're lucky to have two experts with us today.
[SPEAKER_00]: The first is Dr. Joel Geiderman.
[SPEAKER_03]: I'm the co-chair of the Immortal Department at Cegerson Medical Center in Los Angeles.
[SPEAKER_03]: I've been to my position as co-chair for 31 years now, and I've been at the hospital since the 1970s, which is a long time.
[SPEAKER_03]: And I've served by the Ethics Committee of the Hospital as well as our College of American College of Emergency Physicians.
[SPEAKER_00]: Dr. Gaiman has written extensively about this topic, and we asked him how he got interested in it.
[SPEAKER_03]: at least part of it.
[SPEAKER_03]: I think comes from my background as being the child of holocaust survivors.
[SPEAKER_03]: You know, the physician is violated almost every code they could think of during that period of time and we're highly complicit in crimes against humanity.
[SPEAKER_03]: So I kind of became interested in a little bit that way.
[SPEAKER_00]: We'll also hear from Dr. Gregory Brisson.
[SPEAKER_02]: on an internist at Northwestern Hospital in Chicago for half of my job I see patients in the office and in the other half of my job I spend my time teaching medical students and writing about medicine and I'm also a member of the hospital ethics community which is at the intersection of these different roles that drop this issue to my attention.
[SPEAKER_00]: He told us about a particular experience that made him think about how medical students can bounce patient
[SPEAKER_02]: with some years ago that I heard a group of third-year medical students out in the hallway after class and one of the students was talking about the way he tracked former patients in the HR and how he found it helpful way to follow up on them.
[SPEAKER_02]: But one of the students in the group challenged him.
[SPEAKER_02]: He said that tracking former patients violated hip-up because the student was no long part of the team that was caring for the patient.
[SPEAKER_02]: Well, this first student responded that he had a right to do this for his education and said that it was expected of students.
[SPEAKER_02]: And then this group got into an animated discussion.
[SPEAKER_02]: And after a few minutes without reaching a conclusion, they turned to me and they said, Dr. Burson, what's the right answer?
[SPEAKER_02]: Is it okay to track patients in the EHR for educational purposes?
[SPEAKER_02]: Well, I had no idea, even though I was wearing a long white coat, I didn't know the answer to this.
[SPEAKER_02]: So I did but teachers typically do when they don't have the answer.
[SPEAKER_02]: I acknowledge that it was a great question and suggested that we all read it on it.
[SPEAKER_02]: When we explored the topic, we found there was little guidance and literature.
[SPEAKER_00]: So Dr. Brisson and the students decided to do some research and publish on the topic themselves, and we'll get back to their interesting findings and solutions in the second half of the episode.
[SPEAKER_00]: But first let's start by defining privacy and confidentiality.
[SPEAKER_00]: Where do they overlap and how do they differ?
[SPEAKER_00]: And why do we even care about them?
[SPEAKER_02]: Up in its reality is an ancient principle and medicine are well-known to both physicians and patients.
[SPEAKER_02]: And it can be defined simply as the commitment of the physician to protect information about the patient.
[SPEAKER_02]: And that's important because the doctor patient relationship is based in trust.
[SPEAKER_02]: Patients need to be able to trust their doctors will protect the information that provided information that they share in confidence or they may not seek care.
[SPEAKER_02]: and so, and that respect, the principle of confidentiality really enshrines the trust that's at the foundation of the doctor patient relationship.
[SPEAKER_02]: Privacy in contrast is it more modern principle and that a seminar can be defined as a person's ability to protect information about themselves.
[SPEAKER_02]: And even if patients trust their doctors, not to share health information, there are some things that are sensitive or personal that patients may not want their doctors to know.
[SPEAKER_02]: and they have to write not to disclose that.
[SPEAKER_02]: And her privacy is assumed as part of the guarantee of patient autonomy.
[SPEAKER_02]: Certainly, if there isn't that trust that doctors will maintain that confidentiality, the impatience are more likely to protect their own privacy.
[SPEAKER_00]: So these responsibilities are rooted in the need to respect patient's autonomy and to maintain the trust in the clinician patient relationship that's crucial to providing good care.
[SPEAKER_03]: I think it really stems from our respect for the moral worth of a person and for their dignity.
[SPEAKER_03]: And so, it is core that's what it's about is that a patient has moral worth because of their personhood and that that should be respected.
[SPEAKER_03]: Whether it's physical privacy or informational privacy, yes, you're at it, you're in control.
[SPEAKER_00]: Now I'll hand it over to Joffer.
[SPEAKER_00]: He's first going to review some of the major guidelines and prominent laws relevant here.
[SPEAKER_00]: We'll then move to considering a few important cases where we may ethically limit how we protect patient privacy and confidentiality for the safety of other individuals or the general public.
[SPEAKER_00]: And finally, we'll circle back to our discussion with Dr. Brisen about how he explored this issue with his medical students.
[SPEAKER_04]: which just like tomorrow outlined, we're specifying privacy and confidentiality is a fundamental part of what we do in health care.
[SPEAKER_04]: It's a part of our training that comes up over and over again, the every different level of our career, and it's good reason.
[SPEAKER_04]: Like Dr. Spryson and Guider men pointed out, it's the basic covenant of trust that allows patients to feel safe bringing their problems to us.
[SPEAKER_04]: And this is not a very modern ethical principle.
[SPEAKER_03]: is an ancient beauty.
[SPEAKER_03]: It's actually one of our foundational duties.
[SPEAKER_03]: It's about the only thing that it's survived the protocols.
[SPEAKER_03]: And it's beautifully stated in Yoh, the old states, whatever house they enter, I will enter to help the sick and all upstained for all intentional wrong doing an harm, especially from a business body of a man or woman.
[SPEAKER_03]: And whatever I shall see or hear in the course of my profession, as well as outside my profession, should not be published abroad.
[SPEAKER_03]: I will never devolves holding such things to be holy secrets.
[SPEAKER_03]: And it's a beautiful phrase, and it really doesn't vote almost a holy duty, and the packages reference going into a patient's house.
[SPEAKER_03]: And the truth is, when you haven't interacted with the patient, it's as if you're going into their house, because they're laying into the most private parts of their lives.
[SPEAKER_03]: And it's necessary to, in order for us to do our job correctly.
[SPEAKER_03]: And as well as to make the patients feel comfortable and be able to disclose things to us.
[SPEAKER_04]: OK, historical references aside, I want to jump ahead to the modern era and take some time here to Google for the relevant guidelines published by a couple of our biggest governing bodies in medicine.
[SPEAKER_04]: First, we'll talk about ethics.
[SPEAKER_04]: And for that, we'll look at the AMA guidelines.
[SPEAKER_04]: So the AMA defines four main parts of privacy.
[SPEAKER_04]: First, we have informational privacy.
[SPEAKER_04]: And this is the thing we tend to focus on, meaning personal health information or PHI gathered during medical care and how we protect that through confidentiality.
[SPEAKER_04]: By contrast, physical privacy relates to how we respect the patients' control over their body, who touches it, when and how.
[SPEAKER_04]: Whereas, the seasonal privacy means honoring a patient's ability to make personal choices, like those reflecting religious or cultural identities.
[SPEAKER_04]: Finally, a sociational privacy is defined as a patient's ability
[SPEAKER_04]: and who they include in their medical care.
[SPEAKER_04]: Now in terms of how to manage privacy, I'll quote the AMA in saying quote, physicians must seek to protect patient privacy in all settings to the greatest extent possible.
[SPEAKER_04]: So what does that mean?
[SPEAKER_04]: Basically it breaks down like this.
[SPEAKER_04]: First, if you have to intrude on a patient's privacy, do it as minimally as possible.
[SPEAKER_04]: Second, if their privacy gets breached in a significant way, make sure they know that.
[SPEAKER_04]: And then if they ask how their privacy is managed,
[SPEAKER_04]: acknowledging limits and systems and policies.
[SPEAKER_04]: Finally, though that different patients may want different degrees of privacy.
[SPEAKER_04]: Now in practical terms, and even just thinking about information privacy here, we do share PHI pretty often.
[SPEAKER_04]: Some of those reasons include coordination with other medical providers or for billing purposes and cooperation with legal investigations and reporting laws, stuff will get into in some depth here with the next section.
[SPEAKER_04]: But again, the overriding expectation is that we'll share only the minimum amount of information required and with full transparency.
[SPEAKER_04]: Okay, so that's the AMA Code of Ethics in a nutshell.
[SPEAKER_04]: On the legal side, we have our old friend Heppa, and what's called the privacy rule, which defines quote, covered entities that have to guard PHI.
[SPEAKER_04]: We've included a link in the show notes to the US Department of Health and Human Services website, if you want to jump into the nitty gritty about the privacy rule.
[SPEAKER_04]: But suffices to say, this is a pretty hefty federal mandate.
[SPEAKER_04]: Protected by the Office of Civil Rights, and patients do have a lot of rights in this.
[SPEAKER_04]: They can request a list of any disclosures that were made with their PHI, and now with the advent of the 21st century Cures Act, HIPAA also allows nearly unlimited patient access to clinician notes written about them in their health care records, with room for patients to object and submit requests for amendments to their records and restrict disclosures to certain groups.
[SPEAKER_04]: But we'll get into next to the ethical tensions we wrestle with when privacy and confidentiality comes up against other moral demands.
[SPEAKER_04]: Something will lead for Margotto open up because, well, this is where it gets much, much harder.
[SPEAKER_01]: As Jaffer mentioned, there are times when our duty to protect a patient's confidentiality clashes with our duty to protect the health and safety of others.
[SPEAKER_01]: Let's dive into the rare situations where we need to put confidentiality to the side.
[SPEAKER_01]: A mandatory reporting categories.
[SPEAKER_01]: The first category is the threat of imminent harm to other people.
[SPEAKER_01]: This category was defined by a tragic case.
[SPEAKER_01]: A 1969 California Supreme Court case called Terrace Off versus the Regents of the University of California.
[SPEAKER_01]: A man named Prasunjud put our fill for a woman named Tatiana Tarasov, but felt like his love was on-requited.
[SPEAKER_01]: He became obsessed and told a psychologist that he planned to kill her.
[SPEAKER_01]: His psychologist was obviously alarmed.
[SPEAKER_01]: He asked the campus police to detain Podar for paranoid schizophrenia, but after interviewing him, the police let him go.
[SPEAKER_01]: They said he seemed rational.
[SPEAKER_01]: Ultimately, Podar fell through on his threat and murdered Tarasov.
[SPEAKER_01]: Tarasov's parents filed a lawsuit, saying that the psychologist failed to warn them that their daughter was in danger.
[SPEAKER_01]: There is a lot to unpack with this case, but the court focused on several issues.
[SPEAKER_01]: Did the psychologists have a duty to warrant herself's parents about Podar?
[SPEAKER_01]: When there's a conflict between patient confidentiality and the health of another person, which one do we prioritize?
[SPEAKER_01]: The psychologists' legal team argue that a duty to warrant with threaten the open and honest communication that is essential for a therapeutic, plant-patient clinician relationship.
[SPEAKER_01]: But the courts said that confidentiality needed to be balanced with the public interest and safety.
[SPEAKER_01]: Their conclusion, quote, the protective privilege ends with the public peril begins.
[SPEAKER_03]: And Zed enshrined the duty of the war and said, if they can't be a general thing, saying, I'm going to go shoot up society and it's got to actually be an identified specific person in order to have that duty of the war and be triggered.
[SPEAKER_01]: If you're aware that your patient presents a serious threat to someone else, you have a duty to make sure the person at risk is warned.
[SPEAKER_01]: If you find yourself in this situation, reach out to the legal team at your local institution.
[SPEAKER_01]: The second mandatory reporting category takes a broader view.
[SPEAKER_01]: What is our duty to protect public health?
[SPEAKER_03]: Another whole area of reporting are infectious diseases, and this goes back to the late 1800s, early 1900s, where diseases such as yellow fever, and, like, were mandatory reported for infection control.
[SPEAKER_03]: And to the state, there's federalists actually of diseases that are obligated to report, usually had to sign internally by hospitals, et cetera.
[SPEAKER_03]: But again, that's first societal good.
[SPEAKER_01]: surveillance systems have saved countless lives, by enabling clinicians to communicate their concerns to public health officials.
[SPEAKER_01]: We've got an early warning about everything from SARS to the West Nile virus, but there's a tension between our patients for it to confidentiality, and our duty to protect others from an infectious disease they may carry.
[SPEAKER_01]: There are mandatory reporting laws in all 50 states that require clinicians or healthcare institutions to report act tuberculosis and certain socially transmitted infections to the local or state-level Department of Health.
[SPEAKER_01]: The focus is on STI's behalf good treatments for, syphilis, HIV, gonorrhea, chlamydia, and shankroid.
[SPEAKER_01]: The Department of Health usually manages whatever next steps may be necessary, like contact tracing and partner netification.
[SPEAKER_01]: But it's important to know your state laws.
[SPEAKER_01]: In a few states, you have a duty to warrant the people who are in harm's way.
[SPEAKER_01]: At a clinician knows of any partners that their patient may have passed the STI on, too.
[SPEAKER_01]: They're legally obligated to notify the health department about that person, too.
[SPEAKER_01]: Surveillance is complicated for reasons beyond its tensions with confidentiality.
[SPEAKER_01]: Surveillance can sometimes lead to more intrusive measures, like quarantine.
[SPEAKER_01]: This conflict of interest became particularly clear to me in residency.
[SPEAKER_01]: Joffer tomorrow night all trained at a public safety net hospital with a wing dedicated to caring for people with tuberculosis.
[SPEAKER_01]: These patients weren't all there voluntarily.
[SPEAKER_01]: In New York City, we do everything we can to connect patients with tuberculosis to treatment.
[SPEAKER_01]: But as a last resort, the Department of Health has the power to compel non-adherent patients to be placed in isolation, as a way of protecting the public.
[SPEAKER_01]: those patients didn't want to be there, but while they had the right to refuse medication, they didn't have the right to leave.
[SPEAKER_01]: To sum up, I just want to acknowledge how complicated this can be.
[SPEAKER_01]: We're used to focusing on what's best for our patients, but when there's a clash between our patients' right to confidentiality and the public's right to safety, there are a handful of situations where we may have to betray our patients' trust.
[SPEAKER_04]: So Margot just outlined some important scenarios where respect for patient privacy runs up against our need to protect others from harm, whether it be from a communicable disease or homicidal intentions.
[SPEAKER_04]: But what happens when we think we've witnessed the harm?
[SPEAKER_04]: How do we respond to cases of suspected abuse?
[SPEAKER_04]: Now, it's probably not surprising to hear that all 50 states have mandatory reporting laws for suspected child abuse, and that the 47 states have laws for reporting suspected elder abuse.
[SPEAKER_04]: And this makes sense, bringing in the appropriate law enforcement social services helps extend or care for the patient into the rest of their life.
[SPEAKER_03]: There are similar laws to child abuse that are relatively non-controversa elder abuse requires recording.
[SPEAKER_03]: It's because the elder person often the time is as dependent on their children or another person for caretaking and the unlikely to report for themselves.
[SPEAKER_03]: They may not have capacity when to report.
[SPEAKER_03]: So in those cases where we have a suspicion we have to do your report as well in order to exactly elderly.
[SPEAKER_04]: But there's more to this than just beneficence.
[SPEAKER_04]: Reporting also allows us to track how often this is really happening.
[SPEAKER_04]: Building statistics helps build the right kinds of political and legal attention.
[SPEAKER_04]: Recent helps build the social resources we need to address it.
[SPEAKER_04]: And so in that sense, reaching confidentiality in cases of abuse serves the overriding ethical principle of justice.
[SPEAKER_04]: It's about asking the bigger questions of how we as a society can prevent such acts of violence and better aid victims, with a special attention to the most vulnerable.
[SPEAKER_04]: And there are some other critical social issues covered by mandated reporting laws.
[SPEAKER_04]: Things like injuries resulting from deadly weapons, acts of crime, or intimate partner violence.
[SPEAKER_04]: Currently, 42 states have reporting requirements for injuries resulting from firearms, knives, or other weapons.
[SPEAKER_04]: Unfortunately, the laws around this area can get pretty hairy and tactical from state to state.
[SPEAKER_04]: Nearly half of states have reporting requirements for injuries resulting from crimes, with it without a deadly weapon, many states have varying rules about what constitutes a deadly weapon, and only seven states have to walk specifically focused on intimate partner violence.
[SPEAKER_04]: So here's where we hit our age old retreat.
[SPEAKER_04]: At the end of the day, you got to know the walls of your own state and practice environment, but underneath all of them lies the same ethical tension.
[SPEAKER_03]: Confidentiality is a prenafacial duty, but if there's an overriding duty, such as protecting society, that may be a legitimate reason to override some of these privacy.
[SPEAKER_04]: To go back to cases of child and elder abuse again, at its base, the ethical calculus seems to more clearly favor the duty to report over the duty to protect confidentiality.
[SPEAKER_04]: But we could do a whole episode just about the ethical ambiguities of what it means as suspect abuse, like what's the threshold it wish to report?
[SPEAKER_04]: And how do these unfairly breakdown on racial and class lines?
[SPEAKER_04]: And what are the social consequences for patients and families when we pull the trigger on reporting?
[SPEAKER_03]: One of the arguments, for instance, against reporting domestic abuse or suspected domestic abuse, or violence, I should call it, is that it may actually deter a patient who needs treatment from coming in at all.
[SPEAKER_03]: And the same argument has been made over seizures and other things that if a patient knows it, they're going to be reported, they've made it a lot of comment whatsoever.
[SPEAKER_04]: These tensions get even worse in cases of intimate partner violence, and it brings up a troubling question.
[SPEAKER_04]: One is the threat of exposure through mandate reporting actually deter a victim from seeking help, when reporting could provoke an act of retaliation from an abuser.
[SPEAKER_04]: And are we justified in stripping consenting adults of the rights to confidentiality and self-determination?
[SPEAKER_03]: Recording of domestic violence in adult patients is more cost reversal.
[SPEAKER_03]: It's actually required in certain states, and it's not required in many states.
[SPEAKER_03]: In some states, you can actually, is permissible to report, and there are immunities for reporting, which is important, so that if you report somebody in good faith, but it turns out there was no abuse after investigation.
[SPEAKER_03]: They can't turn around and sue you.
[SPEAKER_03]: But in my own, again, this is not legal advice to that.
[SPEAKER_03]: But if it can be promised or happen, adult does not want the police to be involved.
[SPEAKER_03]: But you may want involved social services or other remedies that don't allow the police.
[SPEAKER_03]: In certain situations that may be better because all kinds of things can follow along and want you to have the police involved, including loss of job, up to deportation, their condolence or things.
[SPEAKER_03]: And there may be better ways to solve the problem involving the police.
[SPEAKER_04]: At the end of the day, we had to ask ourselves about these competing obligations.
[SPEAKER_04]: First of the patient and front of us, but also at this whole legal framework that compels us to act as agents of the state.
[SPEAKER_04]: Of fulfilling what the state requires may make us betray our responsibility to care for the person who came to us for help.
[SPEAKER_04]: Without any political commentary, we have to acknowledge that we're living in a new era, with a lines between public and protected spaces like health care facilities, or become
[SPEAKER_03]: Many, many years ago in California, they passed a proposition called Prop 187 that we required physicians to report suspected or was referred to at the time as illegal aliens.
[SPEAKER_03]: And it was a supplementary struck down by this spring court at Belia, at least one of the courts, and never went into effect.
[SPEAKER_03]: But I personally would have committed so disobedience and I had reported people,
[SPEAKER_03]: Again, but only it's encouraged people from coming to the emergency department who may really literally mean the care and that it was to seek it for all sorts of recrimination, including deportation.
[SPEAKER_03]: And again, these things can lead to break up of families and all sorts of things.
[SPEAKER_03]: So I think it can have to be careful consideration of the effects.
[SPEAKER_03]: So, neither advice would be in general.
[SPEAKER_03]: I can't tell, it's still your end to help you, but I break a law, and I won't.
[SPEAKER_03]: So, I think in general, it's good to follow a law, unless you really feel as you have conscious objections to doing so in case you're reaching a morally, a law is so morally fraught, because I said during the period of the third Reich in Germany, a lot of the activities that were mandated were considered, quote, unquote, legal, but were highly unethical.
[SPEAKER_03]: that was required physicians to report patients who had congenital conditions or other undesirable characteristics.
[SPEAKER_03]: And I believe 400,000 people were killed during a legal use and age of program in the 30s, during the silent people would believe in you jacks and felt that these retraces would be passed along and what were term lives not worth living.
[SPEAKER_04]: So let me leave it at this and keep it simple.
[SPEAKER_04]: We live in a world of laws and ethics.
[SPEAKER_01]: So now that we've gone through mandatory reporting, let's turn to a different aspect of confidentiality.
[SPEAKER_01]: What if you want to use patient information for a lecture or social media post?
[SPEAKER_01]: Some clinicians share educational EKGs, pictures of rashes, or compelling patient stories on social media.
[SPEAKER_01]: Often this is meant to educate, but sometimes it's some, let's just say at the next race showing an object stuck in the wrong place.
[SPEAKER_03]: But there's a big temptation now in social media for people posting things and it's sort of a wild west where it's unregulated.
[SPEAKER_03]: A lot of institutions have adopted policies, and that's a good way to directly start activity.
[SPEAKER_01]: There are guidelines that can help us here.
[SPEAKER_01]: If you're thinking of sharing a patient's story, you need their consent.
[SPEAKER_01]: As for clinical vignettes, remove all potentially identifying information.
[SPEAKER_01]: The useful rule of thumb that many institutions have adopted is a quote, pause before posting.
[SPEAKER_01]: Encouraging clinicians to reflect on the post's professionalism and any confidentiality issues before putting it up.
[SPEAKER_00]: We've touched on some of the ways privacy and confidentiality issues can shine a spotlight on how ethical principles or approaches can sometimes conflict.
[SPEAKER_00]: There can be tensions between protecting one individual's privacy versus ensuring the safety of another, maintaining a patient's confidentiality versus protecting the general public.
[SPEAKER_00]: In that same vein, we're going to spend the rest of the episode circling back to Dr. Brisen, and the research he undertook with the team of medical students who wondered if it's okay to keep tracking a patient in the electronic health record for educational purposes.
[SPEAKER_02]: So one of the students and I decided that we would survey her medical students.
[SPEAKER_02]: They asked our third year students specifically.
[SPEAKER_02]: After a patient has left your service or you've switched to a new curbship, do you ever go back and follow up on your former patients in the EHR?
[SPEAKER_02]: And what we found is that 96% of our third year students had tracked former patients and I guess we had percents that they found this activity beneficial from a learning perspective.
[SPEAKER_02]: this surprise just in reviewing this topic, we found that many academic medical centers didn't have a policy to address this question.
[SPEAKER_02]: Our hospital didn't.
[SPEAKER_02]: What we found was only a few schools had explicit policies and they offered widely varying approaches ranging from permission to grow vision.
[SPEAKER_02]: So what we did is we gathered a group of members from the Ethics Committee from the hospital and from the medical school and set out to explore the original question, which is it okay to track from more patients in the EHR for educational purposes.
[SPEAKER_02]: We framed a ethical conflict as patient privacy versus medical education.
[SPEAKER_02]: and essentially how do we train exceptional physicians while respecting the privacy rights of our patients?
[SPEAKER_02]: What we did to explore these arguments was to talk to members of the ethics department, members of our hospital compliance department.
[SPEAKER_02]: We talked to our patients to get their perspective.
[SPEAKER_02]: We tried to get a 360 degree view from everyone who is a stakeholder in this question to determine what is the appropriateness of this action.
[SPEAKER_00]: So, they started to lay out the specific issues at play in deciding whether tracking patients in the EHR was ethically justifiable.
[SPEAKER_02]: So, the first argument in favor of tracking is that it improves training in their fort benefits society.
[SPEAKER_02]: And we started with the idea that tracking former patients does have potential value because it overcomes those problems.
[SPEAKER_02]: temporary medical education, shorter lengths of stay, high-limitative clerkships, often interrupted trainees, a relationship with a patient before the diagnosis is made or treatments completed, and that limits the learning experience.
[SPEAKER_02]: So our hypothesis with tracking could improve clinical training by enabling longitudinal follow-up.
[SPEAKER_02]: My father was a general surgeon.
[SPEAKER_02]: He never used electronic health records.
[SPEAKER_02]: So when I told him about this process of tracking, he said it made perfect sense to him.
[SPEAKER_02]: And he made an analogy to golf, which was his sport.
[SPEAKER_02]: He said, you know, if you don't check to see where your ball lands, you can convince yourself that your drives always hit the fairway.
[SPEAKER_02]: I thought that was a wise observation.
[SPEAKER_02]: Another aspect of improving training is that cognitive psychology has shown that having an emotional connection to a subject can augment memory formation.
[SPEAKER_02]: And I think that's what happens when you're tracking a patient, you've already gone, you know.
[SPEAKER_02]: And so I think we looked at this and said, if we can improve the quality of the physician workforce by enhancing training, that's a compelling argument in favor of tracking.
[SPEAKER_02]: We all benefit.
[SPEAKER_02]: And then there's also historical support for tracking at least for patient-based earn-it, which has been valued since the ordinance modern medicine.
[SPEAKER_02]: I'm mostly said that, you know, he who studies medicine without books, sales and untarded seed, but he who studies medicine without patients does not go to see it all.
[SPEAKER_02]: It's hard to argue with those slur, right?
[SPEAKER_02]: At least in medicine, he's our patron saying.
[SPEAKER_00]: And then, of course, there's the flip side.
[SPEAKER_02]: we should talk about what the concerns are for tracking because they're significant and we wanted to look at these from a very critical perspective because we know the stakes are high.
[SPEAKER_02]: So we focused on two arguments against the action of tracking form of patients to first is simply that because patients have a right to privacy tracking ultimately compromises that right and we shouldn't do it.
[SPEAKER_02]: That's simple.
[SPEAKER_02]: In the other words, it's not really necessary to track form of patients to train competent physicians.
[SPEAKER_02]: so let's start the first one.
[SPEAKER_02]: Patients have control over their own information and you may not agree with someone tracking records.
[SPEAKER_02]: And what we found is the most challenging aspect of tracking is that it relates to the future.
[SPEAKER_02]: So think about this.
[SPEAKER_02]: When a patient consents to healthcare teams access to the HR, they recognize that team members may see everything that's already happened in their health to that point.
[SPEAKER_02]: What they may not recognize, though, is that we're tracking is allowed.
[SPEAKER_02]: They've unwittingly consented to those persons having access to future events.
[SPEAKER_02]: For example, a third year student may have a former surgical patient who was discharged and then gets a sexually transmitted infection at some point in the future.
[SPEAKER_02]: And the student might encounter this issue when looking at the records, a few months later to follow up on this patient's recovery.
[SPEAKER_02]: I know the student wouldn't share of an information, they know they wouldn't share that information.
[SPEAKER_02]: But the patient may simply not want them to know about it in the first place.
[SPEAKER_02]: This is private information, not related to the education objective.
[SPEAKER_02]: So that was the first argument that we needed to explore and truly convince people of the risk.
[SPEAKER_02]: The second is that it's not really necessary to train a competent position.
[SPEAKER_02]: When you examine tracking,
[SPEAKER_02]: We realize that there really is little data on the value of it.
[SPEAKER_02]: There are a few observational studies that suggest some value.
[SPEAKER_02]: Also, the literature on the value of case-based RNAs in conclusive.
[SPEAKER_02]: And then support for this argument is also historical.
[SPEAKER_02]: Think about this modern medical training is produced generations of exceptional doctors in the era preceding EHRs.
[SPEAKER_02]: You know, many of our mentors and teachers.
[SPEAKER_02]: Osler was one of, he could be used on both sides of the argument here too, and I think the argument here would be if the benefits don't outweigh the harms, we shouldn't do it.
[SPEAKER_00]: As part of weighing these pros and cons arguments for or against patient tracking the HR, Dr. Brisson's team got patients' perspectives.
[SPEAKER_02]: But consensus was, not only should students be permitted to track, students should be required to do it.
[SPEAKER_02]: The reasoning was this.
[SPEAKER_02]: They said, you know, we know you're going to train competent physicians.
[SPEAKER_02]: But they said, we want a doctor who will care for the whole patient in their illness, not just the disease.
[SPEAKER_02]: And they intuitively sensed that tracking would help foster that quality by connecting them to the patient.
[SPEAKER_02]: they also offered some insight into the kind of guardrails that you need around this process.
[SPEAKER_02]: What they said is, while they thought students should be doing this process, they also thought that students should ask patient for permission.
[SPEAKER_02]: To give patients the satisfaction of participating in the education of medical students, you know, to find some good in their illness, knowing that the student doctor is not in front of them.
[SPEAKER_02]: And we felt like this is really incredibly valuable perspective from the people who have the greatest stake in this discussion.
[SPEAKER_00]: They also turn to their institution's legal team for their input.
[SPEAKER_02]: They looked at the description of permitted disclosure of protected health information as described in that hip or privacy rule and concluded that tracking would be permitted under the broad definition of what's called health care operations, which includes things like education.
[SPEAKER_02]: This was great news.
[SPEAKER_02]: What the opinion was from our legal team, which is conservative,
[SPEAKER_02]: We were most encouraged that there hadn't been wholesale violations of HIPAA by our entire third year medical school class, and I would say this though, that it's never been challenged.
[SPEAKER_02]: Legal opinions are just that until someone chooses to challenge them, and then it would truly be tested.
[SPEAKER_02]: And to my knowledge, it has not been tested.
[SPEAKER_02]: And here's what Dr. Brisson's team concluded.
[SPEAKER_02]: Even though they can do it, how they do it matters, and it's not with all limits.
[SPEAKER_02]: Tracking is a privilege that really demands proper stewardship, and so we needed an approach to tracking that was ethically appropriate.
[SPEAKER_02]: So to address this question, how do we do it better, knowing that all the students are doing it?
[SPEAKER_02]: We started with the most basic technical question.
[SPEAKER_02]: Where do you keep your list of former patients to do it ethically and legally needed a process that was secure?
[SPEAKER_02]: So now at our institution, we ask our students to set up a custom list of former patients that's housed within the EHR.
[SPEAKER_02]: Now, we call that their educational registry.
[SPEAKER_02]: It's literally just a list of former patients that a student follows longitudinal within the EHR for educational purposes.
[SPEAKER_02]: But the next step was to address how do you access these records?
[SPEAKER_02]: Because when they entered the chart of form of patients, they needed to know how to navigate these records.
[SPEAKER_02]: It's different than reviewing the chart of an active patient in the hospital, because they're really just following up on a specific issue.
[SPEAKER_02]: They're not exploring the entire record.
[SPEAKER_02]: So that's why we developed a set of guidelines.
[SPEAKER_02]: There are four of them that are relatively straightforward to enable our students to perform this activity.
[SPEAKER_02]: The records of form repatience need to be traded with the same privacy and confidentiality as the records of active patients.
[SPEAKER_02]: So you don't print a list of patients from your registry and leave it in the cafeteria or don't wander away from the computer with your registry up on the screen.
[SPEAKER_02]: The second guideline was that students should ask patients or their surrogates permission to track them.
[SPEAKER_02]: And on this guideline, we agreed strongly about what the patients permission really eliminates that absolute choice between education and privacy.
[SPEAKER_02]: And more than that, it emphasizes for the student, their ethical duty to the patient and gives them firsthand experience, managing and ethical issue.
[SPEAKER_02]: So we tell our students, explain to the patients what you want to do to follow their records and ask for their permission and suggest a simple script, something like, you know, it's better pleasure taking care of you.
[SPEAKER_02]: If it's all right, I'd like to follow up on your medical record and see how you're doing with that be okay.
[SPEAKER_02]: We also allow one student to get permission for other members of the team and this was really a practical compromise to avoid patients being bombarded with multiple tracking requests on the day of discharge.
[SPEAKER_02]: The third guideline was that students are permitted to track only those patients with whom they've had a meaningful clinical relationship and they need to have legitimate educational intent.
[SPEAKER_02]: The final guideline that we proposed was that students should find a review to the minimum information that's necessary, and there should only track patients for the minimum length of time necessary to achieve the educational benefit.
[SPEAKER_02]: And again, this compromise was meant to minimize the interference on the rights of patients.
[SPEAKER_02]: Ultimately, it's intended to provide both a secure platform and an ethical framework to track former patients.
[SPEAKER_02]: And you know, like all guidelines, we don't imagine they account for all possible scenarios.
[SPEAKER_02]: It occurred clinical training.
[SPEAKER_02]: So we tell students to use the guidelines along with their clinical judgment.
[SPEAKER_02]: And we're always available as members of the ethics community or the faculty to talk to students and have questions.
[SPEAKER_00]: And this framework can be just as applicable to independently
[SPEAKER_02]: I think a physician who's been properly trained on the ethical issues related to the conflict between training or education versus patient privacy should feel confident to be able to track on her patients.
[SPEAKER_02]: And you can imagine that there are certain specialties where that may be more likely to happen than others.
[SPEAKER_02]: For example, I'm an internist.
[SPEAKER_02]: All of my patients, I follow longitudinal surf tracking to me would not have even been
[SPEAKER_00]: Dr. Brisson drove home like these kinds of deliberations are so crucial.
[SPEAKER_02]: I also think too that it promotes a good discussion of the role of ethics.
[SPEAKER_02]: You know, ethicists are rarely the most popular people in the world.
[SPEAKER_02]: And as you can imagine, when we first brought up this issue, there were a number of eyes rolled, and they're like, oh, now you're going to involve the attorneys, and it's all in it'll lead to problems.
[SPEAKER_02]: And well, of course, I can understand the way they feel, we didn't know where this was going to lead.
[SPEAKER_02]: But at the same time, that's the role of our profession in ethics in particular is to know, explore from within and shine lie on issues and clarify things better that we do it.
[SPEAKER_02]: Then if somebody from outside of medicine, a patient perhaps learned this was happening and asked us, what did we do about this to ensure that it was done properly?
[SPEAKER_02]: And we wouldn't have a proper response.
[SPEAKER_02]: So I think it's a wonderful learning tool about the importance of self-regulation and the value of ethics.
[SPEAKER_02]: And I love in particular that it gives medical students a chance to manage an ethical issue primarily.
[SPEAKER_02]: They're the only ones that can manage this issue because it directly relates to them and their relationship to the patient.
[SPEAKER_02]: That is somewhat unique in the medical student relations with the patient where they are a part of a team that typical manages that relationship.
[SPEAKER_00]: And while Dr. Brisson has team worked with their institution to build their approach, remember that each institution will have different policies.
[SPEAKER_02]: There are several hospitals where identified that specifically said you are not allowed to look into the electronic health records of patients who's in his charge.
[SPEAKER_02]: Some even say you can't look at the electronic health records of patients who've been transferred after service to a different floor.
[SPEAKER_00]: So as always, you should make sure to be aware of your own institutions specific policies on this.
[SPEAKER_00]: To wrap-up, privacy and confidentiality concerns are part of everyday clinical practice, and knowing how to proceed when tricky issues arise can sometimes be difficult.
[SPEAKER_00]: While the steps are only touched on a few of the considerations related to this topic, we hope that what we reviewed can be helpful in thinking more about these scenarios.
[SPEAKER_03]: My other advice is when you're in a quandary seek help, either from your legal castle or etc, but that's why it's also good to be prepared in advance and think about
[SPEAKER_00]: You should always be familiar with your local laws, and, as Dr. Geiderman said, turn to additional resources at your institution for necessary support.
[SPEAKER_00]: Ultimately, while we sometimes don't think through issues of privacy and confidentiality explicitly, there are another important layer for trainees and clinicians to consider and providing holistic care.
[SPEAKER_02]: people will find that it's a really welcome dialogue about issues that, you know, sort of nagging us, but never rise to the level of immediate discussion because we're also focused on a person's potassium or their EKG findings, but this is so important.
[SPEAKER_04]: Thanks for tuning in.
[SPEAKER_04]: We know these topics can stir up more questions than answers, and we look forward to hearing more about your experiences with privacy and confidentiality.
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[SPEAKER_04]: As always, opinions expressed on this podcast are our own and do not represent the opinions of any affiliated institutions.
[SPEAKER_04]: Finally, special thanks to all our collaborators on this episode.
[SPEAKER_04]: All of our illustrators, moral and executive support from Shreya Travedi, and most importantly, thanks to you, our listeners.