Last month, the medical staff at a Twin Cities hospital were treating a patient for a traumatic head injury. The patient was brought in by U.S. Immigration and Customs Enforcement (ICE) agents who stated that the patient had intentionally run into a wall.
Nurses reported to several media outlets that the patient had multiple skull fractures on different locations of the head, including both sides, and the front and back. They saw no way that the injuries were consistent with a patient running into a wall. The medical staff strongly suspected the injuries were inflicted by agents.
What should the nurses do in a situation like this? Report the situation to a government agency? Go to the media? Stay quiet because of patient confidentiality?
Now, before I answer, last week, I was talking with one of my clients about their response to the ICE surge in Minnesota. They made a wise point. Emotions are running high now in Minnesota.
I think that is with good reason. People don’t love it when their neighbors and nannies are being aggressively arrested, and that is happening. But emotional decision-making is risky. When discussing legal responses to ICE in the healthcare setting, it’s helpful to remember there’s really nothing special about ICE or the border patrol. The analysis of questions presented here are essentially the same as the questions raised with any government agency or in a variety of other privacy and reporting contexts. So instead of analyzing the question with respect to ICE, it is worth generalizing the question: how do you handle allegations of abuse by someone close to a patient?
When addressing regulatory questions, I think it’s helpful to consider four related questions. What must you do, what can’t you do, what can you do, and finally, what should you do? That general framework works for almost any legal issue.
On the “must” front, when it comes to patients with an injury, there are several situations where a report may be required. The general duty to protect confidentiality is usually obviated by laws that require reporting of suspected abuse or neglect of children or vulnerable adults. Certain injuries like gun shot or stab wound might have to be reported. Because state laws vary, you must consider whether the person in question qualifies under one of the applicable laws.
The only “can’t” is straightforward. You can’t report unless a law permits it or the patient consents.
What “can” you do?
Even when a report is not required, most states offer protections for certain reports that are made in good faith. In other words, in many states, you can resolve doubt in favor of reporting to certain agencies.
But note that these laws will specify exactly how you must report. I am not aware of any situation in which going to the media will be permitted without patient consent. If someone does it, they do it at their own risk.
What “should” you do? While that is an answer that I will have an opinion on, and I will generally offer that opinion to clients, “should” isn’t a legal question.
While “should” isn’t a legal question, the other three are. In the healthcare context, I strongly encourage everyone to use their legal counsel to help analyze any issue like this. Nearly every hospital, clinic, skilled nursing facility, or healthcare organization has access to counsel who can help sort through complicated reporting requirements.
Guessing wrong on one of these issues can have significant consequences. You may be sued by a patient or a patient’s relative for not reporting. If you accuse someone of abuse via a mechanism that doesn’t over legal protection, you may be sued by the person accused. If you think there is a possible reporting requirement or, just a possible danger to a patient, and you have any doubt about what to do, get legal counsel involved.
In situations where a privilege exists for a report, it probably makes sense to err on the side of filing one. If you can get sued for your decision not to report, but you’re protected for a decision to report, that makes the question of what you “should” do relatively easy.
The bottom line is that in most states, if someone brings you a patient and you believe that the person is responsible in some way for the patient’s injuries, there is a high probability that you can make a good faith report of those concerns without fear of liability.
But there may be a particular reporting mechanism that you should use.
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