Confidentiality Consent Sexual Harassment

1. ConfidentialityConsentSexual Harassment LJ Perrot MD, JD

2. Confidentiality • “State or quality of being confidential (intended to be kept secret); treated as private and not for publication” • Black ‘s Law Dictionary

3. Physician/Patient PrivilegeArk. Rules of Evidence 503; 510; 511 • “a privilege where the physician may refuse to divulge in a legal proceeding information in a patient’s medical record or any ‘confidential’ communications made between him and a patient for the purpose of diagnosis and treatment of the patient’s physical, mental, or emotional condition.”

4. “the physician patient privilege of confidentiality belongs to the patient”

5. Historical evolution: • English Common Law-All gentlemen --right (“privilege “) to resist coercion-Lawyer/client relationship-Husbands/wives --perjured testimony • Medical Privilege Statute-passed in New York in 1828 ”specifically granted doctors the right to refuse to testify because confidentiality was needed for good medical care”

6. Elements of Physician/PatientPrivilege: • Professional member of relationshipmust be present-for purposes of Rx and this fact must be know to the patient • Information must be acquired while attending patient during course of treatment -if info is obtained by professional in some other way privilege does not apply • Information must be necessary for treatment

7. Hypo #1 • A 23-year-old white male is brought to the ER. He tells the physician that he is at fault for causing the accident in which he broke his femur. • Q: Can the physician disclose the fact that the patient stated he was the cause of the accident?

8. Hypo #1 • Third Element:“Information must be necessary for treatment” • -if info given by the patient deals with non-medical • matters the info is not privileged • -the statement that he caused the accident in not needed for medical treatment so • no privilege exists

9. Hypo #2 • While examining the 23-year-old accident victim a heroin pack falls out of his sock. • Q: Does the physician/patient confidentiality privilege exist?

10. Hypo #2 • Third Element:“Information must be necessary for treatment” • -observable facts such as those that a lay witness might observe are not privileged • -the fact that the patient had a heroin pack in his sock is not necessary for treatment so privilege does not apply

11. Hypo #3 • A patrolman asks the physician for a description of the clothes worn by the accident victim. • Q: Can the physician disclose this to the patrolman?

12. Hypo #3 • Third element: • ‘Information must be necessary for medical treatment’ • -observable facts such as those that a lay witness might observe are not • privileged • -the description of the • clothing is not necessary for • medical treatment and • could be given by a lay person so not privileged

13. Hypo #4 • A patrolman asks you to describe the auto accident victim’s clothing and there is obvious pellet spray from a GSW. • Q: Can you disclose this to the patrolman?

14. Hypo #4 • Third element: • “information must be necessary for medical treatment” • -the fact that there is pellet spray suggestive of a crime does not prohibit the physician from disclosing the description of the victims clothing b/c it is not necessary for medical treatment and could be given by any lay witness

15. Hypo #5 • The accident victim is suing the guy who shot him for recovery of his injuries. The victim doesn’t want you to disclose the fact that he said he was the fault of the accident in the first place. • Q: Can the physician disclose information about the victims physical condition? And the fact that the victim said he was at fault?

16. Hypo #5 • RE: Physical condition • Rule: • When the patient has put his physical condition in issue there is no privilege protecting release of info about his physical condition • RE: Pt’s admission of fault • Third element • “Information must be necessary for treatment” for privilege to apply

17. Hypo #6 • You examine the auto accident victim and find no serious injuries. As he leaves he tells you that he now intends to go and blow the other guy away? • Q: Is this privileged information and does the rule of confidentiality apply?

18. Hypo #6 • Exception: • “Credible threats made by patient’s to harm themselves or others invalidates the doctor/patient confidentiality rule • -physicians are held responsible for taking precautions to protect the intended victim

19. Exceptions and implied waivers: • Pt puts physical condition in issue-e.g. where he sues for personal injuries • Criminal proceedings • In aid of wrongdoing-physician’s assistance sought in aiding a criminal act or tort • Dispute between Dr./Pt-breach of duty: malpractice, failure to pay bills • Agreement to Waive-contract (life insurance policy)

20. How Does this affect you?

21. Medical Records • “strictly” confidential and may not be released without pt’s written authorization and consent • may not be removed from hospital except by court subpoenaArk. Dept. of Health Regs0601.U-W

22. Medical Research • “All information, interviews, reports, statements, memoranda, or other data … which are used in the course of medical studies for the purpose of reducing morbidity or mortality , …, shall be strictly confidentiality” • ARK 20-46-103(a)

23. Mandatory Physician Reporting: • incidences of communicable diseases • GSW’s • Knife wounds • Adult abuse • Child abuse • sexual abuse • SIDS

24. Communicable Diseases: • HIV • AIDS • Sexually transmitted Diseases-Lab notifications are confidential and the identity of persons participating in the Dept. of Health AIDS testing program must be kept secret Ark. Code Ann.$$20-16-504; 20-15-901

25. Knife and GSW’s • Immediate notification of law enforcement agency-failure: Fine $10 -$100-Must report: 1) name 2) age 3) sex 4) race 5) location of person injured 6) names of person(s) bringing pt in for treatmentArk. Code Ann. $$ 12-12-601- 603

26. Adult Abuse • “suspicions” must be reported to Central Registry, Adult Protective Services, Div. Of Aging and Adult Services, Dept of Human Services-”good faith” immunity from liability and suit for damages-failure to report is a Class B misdemeanor; may be liable for monetary damages consistent with harm suffered by pt.Ark. Code Ann. $$ 5-28-101, 201-206, 208-209, 211, 215

27. Child Abuse • Reportable to Central Agency or law enforcement official-”good faith” immunity from liability and suit for damages-failure to report: Class C misdemeanor; may be liable for monetary damages consistent with the harm suffered by the child • “Child” - someone who is < 18yrs or who is <21 yrs but is subject to the jurisdiction of the courtArk. Code Ann. $$ 12-12-501, 503-505, 507-508, 514

28. Sexual Assault • Includes: -rape-attempted rape-any other type of sexual assault-incestArk. Code Ann. $ 5-26-202

29. < 18 yrs-must be reported to Central Agency or law enforcement agency (treated similarly as suspected victims of child abuse) Ark. Code Ann. 44 12-12-401-405 Adult1) makes decision whether to report to agency; if opts to report the phy reports 2) medical Tx cannot be conditioned on victim reporting 3) Tx’d as regular ER patient 4) Evidence can only be collected with victims permission unless unconscious, mentally incapable of consent or intoxicated Sexual Assault

30. SIDS • must report to County coroner or sheriff within 24 hrs. of discovery of death • Ark. Code Ann. $$ 20-15-502-504

31. Mental Illness • Pt communications with their physicians are privileged with limitations-limited protection is afforded to communication relating to Dx and TxArk. Code Ann. $16-41-101; $ 20-46-104; Ark. Rule of Evidence 503

32. Elevator Talk • “discussion of details of patients medical histories among health care workers in a public setting such as elevators (hospital cafeterias, cocktail parties, …)”

33. Type of Comment and Occupation of Employees Making Inappropriate Comments Type of Comment MD RN Other Clin Nonclin UnI.D violated pt confid 11 2 2 2 1 Unprof remark 3 6 1 0 1 Poor qual of care 0 1 0 5 2 Critical of patient 2 2 0 0 1 TOTAL 15 10 3 7 5 -259 one-way elevator trips where 39 inappropriate comments were heard on 36 of the rides Ubel et al: “ elevator Talk: Observational Study of Inappropratte Comments in a Public Space”, Amer J of Med Vol 99, August 1995

34. Harassment • 5-71-208(a): a person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he: • (1) Strikes, shoves, kicks, or otherwise touches a person, subjects him to offensive physical contact or attempts or threatens to do so; or • (2) In a public place, directs obscene language or makes an obscene gesture to or at another person in a manner likely to provoke a violent or disorderly response; or • (3) Follows a person in or about a public place; or • (4) In a public place repeatedly insults, taunts, or challenges another in a manner likely to provoke a violent or disorderly response; or • (5) engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose; or • (6) Places the person under surveillance by remaining present outside his or her …place of employment, vehicle, other place occupied by the person, or residence, other than the residence of the defendant, for no purpose other than to harass, alarm, or annoy.

35. Sexual Harassment • Employee’s- Title VII Civil Rights Act of 1964 $703 • Student’s-Title IX Education Amendments of 1972

36. Forms of Sexual Harassment: • 1) Quid pro quo-making conditions of employment (hiring, promotion, retention,…) contingent of the victims providing sexual favor--i.e. • “sleep with me or your fired” • Heelan v. Johns Manville Corp., 451 F. Supp. 1382 (1978) • “If your nice to me I’ll give you a good evaluation so the Doctor will promote you and give you the raise” • -applies to “agents” (vicarious liability)

37. 2) Hostile working environment • “speech and/or conduct of a sexually discriminatory nature which is neither welcomed nor encouraged, committed by or permitted by a superior, which would be offensive to a reasonable person as to create an abusive working environment and/or impair his/her job performance”

38. Elements: • 1) “speech and/or conduct” • 2) ”of a sexually discriminatory nature” • 3) “which is neither welcomed nor encouraged” • 4) “committed by or permitted by a superior” • 5) “which would have been so offensive to a reasonable person as to” • 6) “create an abusive working environment and/or” • 7) “impair his/her job performance”

39. “speech and/or conduct” • - mere words • --”dumb ass” • Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) • -words and conduct • --asking employee to dig coins out of one’s own pants pocket • Harris • -conduct alone • --”fondling a woman’s breasts” • Weeks v. Greenstein

40. Sexual Misconduct/Harassment actions against physicians: • 1) inappropriate touching • -patients or staff • 2) unusual breast exams while undraped or standing • 3) pressing in against a patient with an erection felt • 4) hugging or kissing patients as part of therapy • 5) discussing examination of patient’s genitalia to nurses or technicians after the exam • 6) exams not chaperoned • 7) seeing patient alone in office after hours or socializing with patients after hours

41. “ of a sexually discriminatory nature” • Issue: • Whether that speech or conduct is directed at the employee on the basis of his/her gender • OR • has a disparate impact on the basis of gender • NOT: content of the speech or the precise nature of the conduct • Title VII is a discrimination law NOT a SPEECH Code

42. “which was neither welcomed nor encouraged” • Victim must subjectively have been offended by the speech/conduct • Harris • -CAN’T CLAIM LATER AFTER YOU GET FIRED THAT even though you weren’t offended at the time that A REASONABLE PERSON WOULD HAVE BEEN • -- [not based on reasonable person standard] • If Defendant (employer) can show that the plaintiff (employee) welcomed and/or encouraged the speech/conduct -- NO DISCRIMINATION

43. “committed by or permitted by a superior” • Plaintiff must show that his/her superior “knew or should have known” about the speech/conduct and did not intervene • --means that an “ordinary, reasonable prudent person in like or similar circumstances” would have know • -If supervisor is the one doing the harassing -- requirement met • -Supervisor can’t claim that he is a lousy supervisor and didn’t know so he can’t be held liable

44. “would have been so offensive to a reasonable person” • Key: reasonable person • -not enough that the employee • was offended (he may be • unusually sensitive or thinned • skin) but another reasonable • person would have been offended • -plaintiff can’t argue “well I know a reasonable person would have shrugged this off, but I’m not reasonable” • -Harris did away with the reasonable woman standard

45. “create an abusive working environment” • -”an environment where the employee is distinctly made to feel unwelcome, unwanted, scorned, ridiculed, intimidated • … on the basis of his/her gender” • --underlying theory: • --- harasser is attempting to get the victim to either quit or screw up enough to get fired

46. and/or “impair his/her job performance” • The speech or conduct is so offensive that a reasonable person’s job performance would be impaired • -trying to make life so miserable that the victim will screw up enough to get fired • i.e.: Defendant Doctor fired Vicki citing the reason for her firing “she didn’t get the filing done in a regular and orderly manner” • Vicki can recover if she can show that the filing room is next to the men’s bathroom and every time she went to file Dr X was there and kept saying “C’mon in and file this , sweetcakes!”

47. A business person can protect him/herself by developing a sexual harassment policy which is consistent with the law

48. Jury awards $2.3 million in amputation case • A federal jury awarded > $2.3 million in damages to a man who said his penis and left testicle were removed without his consent during surgery for an infection. • -Rogers claims that he was admitted three times in 1997 for treatment of an infected cyst in one of his legs. The infection later spread to his groin and he underwent surgery to remove the cyst and other infected areas. He claimed that he was never toldthat amputation was a possibility during surgery. • Rogers v. Peterson and Slocum • 2/7/00 Bowling Green Kentucky

49. Consent: • “Voluntary agreement” by a person in possession of sufficient mental capacity to make an intelligent choice to do something proposed by another

50. Informed Consent: • “Consent given by the patient based on knowledge of the nature of the procedure to be performed by the physician as well as the risks, possible complications, benefits, and alternatives to the planned procedure”