Legal Eagle – HIPAA primer For Writers

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(Basic up front disclaimer: These are over simplified concepts, and this post is not to be taken as legal advice.  If you want legal advice, go ask a lawyer.  I’m not your lawyer, I’m just a writer who is also a lawyer 🙂 

My main areas of interest in law are Health Law and IP.  I’ve hit on a few areas of IP because it pertains more to writers.  Criminal Law is always entertaining too, and I’ve definitely covered that on this blog because that’s what you’ll see the most of in fiction.  But today I’m going to give you a primer on one aspect of Health Law.

This is either just for your own information so you know a tiny bit of the maze of regs your doctors have to deal with, or also so you know at least the basics of stuff like Privacy laws and you don’t put doctors messing that up in your fiction because it makes people like my mom (who has worked in Labor and Delivery for about 20 years) physically twitch when she sees it 🙂

First of all, when we say health law, we don’t usually mean medical malpractice, as in people suing doctors.  When you work on the Plaintiff’s side it’s what we call personal injury law, and then it’s malpractice and usually considered a type of health law on the side defending the doctors and hospitals.  But health law usually means you’re doing the contracts for healthcare professionals and hospitals or you’re doing stuff to help them navigate the tricky world of regulations and laws surrounding the practice of medicine.

The 3 big laws healthcare professionals have to contend with (keep in mind, there are a ton more, and a lot of these are extremely complex) that are just so convoluted and complicated hospitals have to have at least one person working on them, usually called a Compliance Officer, full time are HIPAA, Stark, and Anti-Kickback.

We’re going to talk about HIPAA because that’s the one that really affects patients (and is most likely to be an issue in a story.)

If you’ve watched any medical show or have gone to the doctor in the last 20 years or so, you’ve heard of HIPAA.  This is the big pain in the ass one for healthcare professionals (and writers!) because everyone has heard of it, they have a general idea of what it is, but it encompasses things that happen in day to day life and require on the spot decisions.

This is an issue when the doctors are talking about work, the hospital has a duty to report something (like gunshot wounds), in how the hospital is set up, what paperwork the patient has to deal with, and when anyone there posts anything on social media.

The very basics, bare bones idea of HIPAA is healthcare professionals can’t disclose information about the patient they got by virtue of being a healthcare professional.

They can’t say this person is in the hospital to have a baby.  They can tell people who ask for the patient by name where the patient is.  (Basically they want your loved ones to be able to find you.)

The show where the nurse with the attitude is yelling across the clinic room, and she yells the girl’s name and what she’s getting tested for, usually something embarrassing like an STD?  Yeah, that’s BS.  My mom and I twitched in unison at that one… then my siblings asked if we needed to go see a doctor for seizures 🙂

On Grey’s Anatomy, where they have the surgery board out with patient’s names and the shorthand for the surgery and visitors and patients are just wandering by?  Not happening.

When it comes to telling family members, the rules get pretty specific, but the idea is if someone’s unconscious and can’t give HIPAA release consent, the doctors can update immediate family about your condition. (This could be a good point of contention in a story because the doctors could be faced with a pissed off long time girlfriend of an injured man who can’t get any information even though she is family in everything but name since they aren’t married.)  As I said, it does get specific and the rules try to allow for doctors to give loved ones information, so there could be a way around this one in one of the tiny exceptions or go arounds, but that’d require a lot more research to find and I’m not putting in that kind of time tonight. 🙂

Big issue nowadays, because it has to shove its nose into everything 🙂 is social media.  Oh yeah, good way for anyone on the floor to lose their job?  Take a selfie in the hospital.  You may or may not post something that does have patient info, but the hospital sure as hell doesn’t want to risk it.  If a hospital is at all on the ball (and if they aren’t, they’re in trouble with the feds) they have a HIPAA and social media policy.

So the shows where the celebrity is in the hospital and the staff are taking pictures with them?  Not unless the celebrity signs his consent, and even then, the hospital will probably forbid it just to make sure nothing that isn’t consented to falls through the cracks.

Now, this doesn’t mean a patient can’t post something about themselves or another patient.  Just like you can’t claim an individual not associated with the government violated your constitutional rights, a none healthcare professional, like another patient, can’t violate HIPAA.  The hospital might get in trouble for allowing this patient to find out info about another patient, but something like the patient posting on Facebook about his cool snowboarding roommate in the hospital?  The individual who does that isn’t violating HIPAA.

My telling people about my brother’s skiing accident and how he broke both his legs and his left arm, and made a recovery so beautiful the rehab center put him in their brochures (which wasn’t a violation of HIPAA because they asked and he signed a consent saying “Hell yeah!”) isn’t me violating HIPAA, it’s me bragging about my titanium baby brother.  No literally, they put titanium rods on his legs to set his bones and had him up and walking within about a week of his accident, and the rods are still there.  (One myth dispelled, titanium does not set off the metal detectors at government buildings or the airport no matter what TV says.)

This gets so much more complex that I can’t come close to giving you a big picture of the whole thing, but that’s the idea.

Happy Writing 🙂

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