Patient Privacy

Patient Privacy and Accountability

One of the greatest "hot buttons" in the field of health care today is the issue of personal privacy and the subject of patient privacy in particular. It has been estimated that the greatest change in health care during the 20th century was due to the introduction of antibiotics and subsequent management of infection. In kind genomics will, in greatest likelihood, be the greatest transformation in health care in the 21st century. Who will control this important information? Clearly it is to the benefit of the individual (or patient) to have this knowledge. Clearly others will seek to use this information to suit their own agendas, which are not always in the best interest of the individual (or patient). Whether obtained by legal or illegal means health care and genomic records are valuable commodities to governments, health care systems, insurance companies, employers, etc.

Most patients would be astonished to learn the degree to which their personal medical records are presently being routinely accessed by different groups without their knowledge or consent. In a society where even the police can't access an individual's telephone or purchasing records without a court order it appears that over 50% of the American population now have (without their knowledge) their personal medical data being routinely collected and scrutinized by federal and state agencies.

Despite the fact that present privacy rules require a patient's permission to divulge this information and that a a year 2000 Gallup poll indicated that 92% of Americans opposed official snooping in their medical records loopholes abound. Public agencies, blood and sperm banks, drug companies and hospitals aren't always protective of sensitive patient data. The most sacred protection remains that of the physician-patient relationship. Physicians can not release a patient's medical records without their consent. Would you be startled to learn that your HMO can presently do this? Well perhaps not given the fact that HMOs also have been given a legal "pass" on being held accountable for their acts which are harmful to others.

Given the realities noted above it seems fair to inquire as to where things appear to be going with the Clinton, and now the Bush, patient's "Bill of Rights" for medical privacy? According to Sue A. Blevens of the Institute for Health Freedom in Washington, D.C. the rules being proposed appear to undermine traditional doctor-patient confidentiality while also authorizing new intrusions into patient privacy by government officials. Quite frankly this is scary. (McMenamin B: Prescription For Snooping, Forbes, May 28, 2001, pp. 62)

Managed Care Accountability For Denial of Coverage Based On Eligibility and Medical Necessity

It is eminently clear that at this point in time patient's privacy and rights are under siege. Is there help on the way? Will HMOs become accountable for outrageous behavior? Will attempts at tort reform allow outrageous behavior to simply become a business expense (and not change behavior)? The battlefield is the United States Congress and the issues have drawn in some rather unusual support including the American Medical Association and the American Trial Lawyers Association. Arrayed against these knights are the forces of managed care carrying their banners justifying their economic agendas and declaring that by allowing patient's true legal redress it would only serve to increase premium costs, decrease services, and threaten the ability of "working families" to afford health care. Lost in this is the appreciation that the present directions of managed care have already created, and continue to maintain, this exact situation.

General agreement exists in the United States Congress today that patients need to be protected from mistreatment by managed care organizations. Of course, the best way to accomplish this is to place patient's in the driver's seat through IHMPS and thus eliminate the need for such legislation.

In the bills presently before the Congress patient protections such as guaranteeing access to specialists and forbidding insurers from "gagging" physicians are included. The real area of combat in the congressional coliseum however relates to the issue of what a consumer can achieve in punitive damages for injury, pain and suffering. Accountability is important but what good is accountability without liability?

In regard to medical malpractice tort reform President Bush has suggested a $250,000 cap on punitive damages. There can be little doubt but that this view reflects the interest of the insurance industry and not that of society in general or the patient in particular.

In regard to Patient's Bill of Rights legislation there are the Frist-Breaux-Jeffords (S. 889) and the McCain-Edwards-Kennedy (S. 872) bills being considered. Only S.872 contains any real liability for managed care denial of coverage based on benefit eligibility or medical necessity. In S. 872 denial of coverage based on eligibility creates a remedy under federal law where patients may recover full compensatory damages and up to $5 million in punitive damages. This may not be fully adequate to "fit the crime" in all circumstances but it is certainly a realistic start when one considers that the patient will only receive a percentage of the recovery.