One constant in healthcare is people asking you for, or even demanding, information.
It could be a police officer insisting they get information about a patient. It could be a lawyer indicating that they have the right to medical records, employment files, or some business record. It might be a parent of a patient, going through a contentious divorce, insisting that they are entitled to medical information their spouse refuses to share.
These situations pose peril because there often is a wrong answer. There can be consequences if you share information with someone who is not entitled to it, but also for refusing to share information with a party who is. Because there are so many different applicable laws, this article is not going to try to tell you whether you can, must, or should disclose information. Instead, I want to focus on a framework for approaching the person making the demand.
I have said this before, but the first thing to emphasize is that the louder someone is yelling at you, the less likely it is that they have actual authority to get whatever they are demanding. People with clear authority cite it. Whether it is a search warrant or a statutory provision, when people have a legal basis to get information, there is no need for theatrics. So, if someone is yelling, that should heighten your level of suspicion.
But the opposite can also be true. If someone is really sweet-talking you or offering a sob story, they too may lack the authority to get information. They may be hoping to con you into sharing something. I once came remarkably close to falling victim to such a ploy. I had represented a couple in a dispute about coverage of substance use disorder treatment. A few years later, the husband called asking for a copy of the legal file. What he really wanted were his estranged wife’s medical records.
It can be particularly difficult to stand your ground when the person demanding information has a badge and a gun. I have some personal experience with this, because I had to talk my way into our house on the day our son died. It wasn’t easy. But in that situation, I was doing the asking. When an officer of the law is demanding something, refusing can seem very daunting. Members of law enforcement are used to getting what they want, and have been known to threaten arrest. My very first phone call as a lawyer was with a postal inspector.
When I explained that Minnesota law would not allow our client to provide him with medical records without a court order, his response was that if that was my position, I could spend the weekend in jail thinking about it. Since it was my second day on the job, I was only mostly sure that he was full of hot air. But in some ways, law enforcement is the easiest party with which to deal. If they have the legal basis for getting the information, they should be able to cite it with ease.
And this brings me to my final point.
Just because someone gives you a citation doesn’t necessarily mean it’s valid. Anyone can string together a series of words and numbers to make it sound authoritative. It is important to remember that information, once released, cannot be retrieved. Record requests rarely involve situations where there isn’t the five minutes it takes to reach legal counsel to determine whether it is proper to release the information in question.
It is extraordinary unlikely that anyone will get arrested for doing so, though admittedly, it has happened. You may remember that I did a segment on the courageous Nurse Alex Wubbels from the University of Utah. What happened to her was terrible, but she wound up getting compensated for the government’s gross abuse of power. The bottom line is that standing your ground is the right thing to do, and if you face abuse for it, you may wind up getting compensated just for doing the right thing.
When you aren’t sure whether to release records, it is time to channel Hall & Oates. Very politely ask the person, “wait for me please/wait for me, alright/I guess that’s more than I should ask/but won’t you wait for me?” Then use the time to check with counsel to make sure you are making the right decision.
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