Doctor-Patient Confidentiality Under attack

 

This week the Supreme Court of the State of Washington heard arguments in a case that has profound implications for the doctor-patient relationship.

In the case, Volk v. DeMeerleer, a psychiatrist, Howard Ashby, was sued after a patient of his, Jan DeMeerleer, shot and killed an ex-girlfriend and her 9-year-old son before killing himself. (Mr. DeMeerleer also stabbed another son, who survived.) The estate of the victims, Rebecca and Phillip Schiering, took legal action, arguing that Dr. Ashby was liable because he had not warned the Schierings. A lower court ruled in Dr. Ashby’s favor on the grounds that Mr. DeMeerleer, who had occasionally voiced homicidal fantasies, had made no specific threats toward the Schierings during his treatment.

Throughout history, doctor-patient confidentiality has been a cornerstone of Western medical practice. The duty to keep patients’ information private is written into the codes of ethics of medical organizations, and is even in the Hippocratic oath: “What I may see or hear in the course of treatment,” it says, “I will keep to myself.”

Patients allow physicians into their private lives on the condition that the information we learn will not be used against them. I once took care of a business executive in the emergency room who had hired call girls during a weekend drug binge. When he saw a police officer outside his room, he quietly handed me an envelope containing a large amount of white powder. I wasn’t sure what to do with it, so I discarded it. For the next several hours the patient eyed me suspiciously, probably wondering whether I had ratted him out. But it never occurred to me to do so.

Of course, like all ethical imperatives, doctor-patient confidentiality is not absolute. Doctors have to disclose private information when it is clearly in the patient’s interest (documenting a drug allergy in the medical record, for example) or when it comes to complying with a court order (as in cases of child abuse). We must also betray confidentiality when it is in the “public interest” (reporting infectious diseases, for example).

The duty to warn third parties in danger is also an important exception to confidentiality. We publicly disclose the identities of sex offenders. We alert family members when hereditary diseases in our patients come to light. A colleague of mine once took care of a patient, a school bus driver, who received an implantable defibrillator after suffering cardiac arrhythmias. When my colleague advised the man to quit his job because of the potential risk to young children, the man refused, so my colleague reported him to the Department of Motor Vehicles. It was an action that my colleague felt very comfortable taking, even though it created an irreparable rift in that relationship.

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In the same vein, doctors have a duty to warn individuals who are threatened by their patients with bodily harm. This obligation was largely shaped by the seminal 1976 case of Tarasoff v. Regents of the University of California, in which the Supreme Court of California ruled that mental health professionals had a responsibility to protect the intended victims of their violent patients through direct warning or by notifying the police. As Justice Matthew Tobriner famously wrote in the majority opinion, “The protective privilege ends where the public peril begins.” The case has served as a basis for law in 33 states obligating physicians to warn or protect third parties.

However, the Tarasoff case has generally been interpreted to confer an obligation to warn individuals who are specifically targeted by psychiatric patients. The lower court in Washington observed that Jan DeMeerleer communicated no threats toward the Schierings during his treatment. Predicting when violence will occur or where it will be directed is difficult under the most straightforward of circumstances. When the threat is not articulated, it is next to impossible.

The World Medical Association states that confidentiality may be breached when the expected harm of maintaining privacy is believed to be “imminent, serious” and “unavoidable.” This standard does not appear to have been met in the case before the Washington Supreme Court.

Breaching doctor-patient confidentiality in such situations will likely be self-defeating. Mentally ill patients may not seek treatment, and psychiatrists, saddled with new legal liabilities, may decline to treat them. We are more likely to minimize harm if the confidence of patients at the greatest risk for violence is maintained.

 

Doctor-Patient Confidentiality Under attack

Revised licensing procedures for Illinois real estate appraisers

The IDFPR will now require applicants for real estate appraisal licensure to submit to criminal background check

-will consider factors such as whether a past crime was one of armed violence or moral turpitude, whether crime relates to the real estate profession, and whether ten years have passed since the applicant completed his/her imposed sentence

-DFPR will also take into account whether the applicant has been sufficiently rehabilitated to warrant licensure, which can be determined by considering whether applicant completed probation or parole, or whether ten years have passed since the end of the imposed sentence without any subsequent convictions.

-even if an applicant has created a presumption of rehabilitation, other factors can outweigh that presumption, such as non-compliance with the applicant’s terms of punishment, unwillingness to cooperate with medical or phsyciatric treatment or counseling, falsification of information in an application for licensure, failure to provide the DFPR with more info when requested, or failure to appear for a meeting with teh DFPR in connection with the applicant’s application for licensure

-DFPR will NOT consider juvenile convictions, arrests that did not result in convictions, or convictions that have been overturned, pardoned or expunged when determining an applicant’s fitness for licensure

-If DFPR determines that an applicant is unfut for licensure, they will send the applicant a notice, and the applicant can then submit a written request for hearing to contest the determination of unfitness

DFPR also amended real estate appraiser training standards

-applicants must now complete the 3 hour ILST-15-AQB Outline Supervisor-Trainee Course or the 6 hour ILST-15-Supervisor-Trainee Course, if applicant only completes the 3 hour course, he or she will then have one year to complete either an Illinois specific course or the full 6-hour course

-new educational requirements: 2,500 hours of AQB appraisal experience to be spread out over at least two years of USPAP compliant work

-bachelor’s degree now required rather than an associate’s degree, and degree can no longer come from a junior college

-applicants for Associate Real Estate Trainee Appraiser License are required to complete 75 hours of qualifying classroom education, which must be completed within five years of the initial date of application

-licensed real estate appraisers are now permitted to make comments based on observations in an appraisal report with respect to a condition that would affect the property’s value, but not permitted to make such comments for compensation
Section 1455.100 Application for a State Certified General Real Estate Appraiser License and a State Certified Residential Real Estate Appraiser License; Application for an Associate Real Estate Trainee Appraiser License; Application by Non-Resident for Licensure by Endorsement

a) Each applicant for a State Certified General Real Estate Appraiser License and a State Certified Residential Real Estate Appraiser License shall submit to the Division:

1) An application, provided by the Division and signed by the applicant, on which all questions have been answered;

2) The fee required by Section 1455.320;

3) Proof of successful completion of the qualifying education requirements as provided by Section 1455.150;

4) A score report/application that provides proof of successful completion of the qualifying education and experience requirements as provided by Subparts C and D;

5) Proof of successful completion of the examination authorized by the Division and endorsed by the AQB; and

6) Satisfactory completion of a criminal background check, as required by Section 5-22 of the Act.

b) Each applicant for an Associate Real Estate Trainee Appraiser License shall submit to the Division:

1) An application, provided by the Division and signed by the applicant, on which all questions have been answered;

2) The fee required by Section 1455.320;

3) Proof of successful completion of the qualifying education requirements within 5 years prior to initial application, as provided by Subpart C;

4) A score report/application that provides proof of successful completion of the examination authorized by the Division;

5) Proof of successful completion of any required conditional education offering; and

6) Satisfactory completion of a criminal background check, as required by Section 5-22 of the Act.

c) Each non-resident applicant for a State Certified General Real Estate Appraiser license or a State Certified Residential Real Estate Appraiser license applying by endorsement shall submit to the Division:

Revised licensing procedures for Illinois real estate appraisers

Illinois Doctors and Pain Medication

MY patient Mr. W. wheeled himself into my office for a checkup. He’d lost a leg to diabetes and was also juggling hypertension, obesity, vascular disease and elevated cholesterol. He was an amiably cranky fellow in his mid-60s who’d used heroin in the past though had been clean for decades.

As we finished up and I handed him his stack of prescriptions, he said, “Oh, by the way, Dr. Ofri, I was wondering if you could prescribe me the oxycodone I use for my back.”

Oxycodone? In the six months I’d known him, I hadn’t been aware that he was taking narcotic pain medication.

“I’ve been getting it for years from my pain doctor in the Bronx, but that clinic closed,” he explained. “So now I’ve got to get it from my primary care doctor.”

He told me about his years of back pain from a construction injury. He could list the other meds and physical therapy he’d tried; oxycodone was the only thing that worked consistently.

Here it was again: the dreaded pain conundrum. A patient requests a strong pain medication and the doctor has to figure out whether the request is legitimate. This is an aggravating situation on many levels. On the individual level, there are the immediate issues of trust — do I trust Mr. W.’s story, and, conversely, how will my decision affect Mr. W.’s trust in me?

Then there is the larger issue of how we doctors treat pain in general. A 2011 report from the Institute of Medicine highlighted how poorly the medical field handles pain. Undertreating pain, we are admonished, violates the basic ethical principles of medicine. On the other hand, we are lambasted for overprescribing pain medications, enabling addicts and creating an epidemic of overdose deaths.

What are doctors to do? Pain is a subjective symptom. There is no instrument to indicate its severity. All that a doctor has is the patient’s word.

For patients with chronic pain, especially those with syndromes that don’t fit into neat clinical boxes, being judged by doctors to see if they “merit” medication is humiliating and dispiriting. It’s equally dispiriting for doctors. This type of judgment, with its moral overtones and suspicions, is at odds with the doctor-patient relationship we work to develop.

As Mr. W. and I sat there sizing each other up, I could feel our reserves of trust beginning to ebb. I was debating whether his pain was real or if he was trying to snooker me. He was most likely wondering whether I would believe him or if I would be biased because he was an African-American man with a history of drug use. Studies show that minorities are consistently undertreated for pain.

There were certainly a few red flags in Mr. W.’s story, but his circumstances were also entirely plausible. I asked as many questions as I had time for, but we were already running late. It could take weeks to get an appointment in a specialty pain clinic, and restarting physical therapy wasn’t easy with his insurance. In the end I had to decide whether I was more ethically comfortable denying meds to a patient in legitimate pain or inadvertently supplying an addict.

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Realistically, a drug addict denied will almost always find a way to get meds, but a person with real pain truly suffers. And so despite some misgivings, I gave Mr. W. a prescription for oxycodone and scheduled another visit to discuss his pain issues in more depth.

The challenge Mr. W. presented was typical: pain that cannot be “objectively” verified; complicated circumstances that do not fit easily into a handy treatment algorithm; a shortage of pain specialists; insurance plans that cover prescriptions more readily than they cover physical therapy, acupuncture or massage; and a reimbursement system that does not prioritize thorough discussions.

Some attention is beginning to be paid to this problem. For example, New York State has created a registry for narcotic prescriptions so doctors can check for patterns of abuse. This is helpful, though the laborious mechanics of the system are a major impediment. Additionally, people who are determined to outfox the system can always fill their prescriptions in neighboring states.

Clearly, we need more pain management specialists and better insurance coverage for nonpharmacological treatments and extended doctor-patient discussions. It is also critical to address the aggressive pharmaceutical marketing that did much to create the mess we are in now.

But the vast majority of pain medication decisions take place during ordinary office visits like Mr. W.’s, within a swirl of imperfect circumstances. A solid doctor-patient alliance is a critical factor for good health. But when patients feel judged by their doctors, and doctors are exhorted to not undertreat pain and simultaneously pilloried for overprescribing pain meds, this relationship can be sabotaged. That isn’t good for anyone’s health.

Illinois Doctors and Pain Medication

Medicare Fraud and the Home Health Industry

Doctors and nurses made visit after visit to the elderly man’s home, even after watching him walk the dog, take a stroll down the street and repeatedly talk about visiting his grandkids.

Yet the home visits were classified as treatment for the homebound, enabling a Chicago-based health care company to bill Medicare for thousands of dollars.

The 71-year-old man, it turns out, was an undercover confidential source for federal agents who for months worked to gather evidence of alleged phony billing practices at Home Physician Services.

On the strength of those recordings, combined with interviews from former and current employees, CEO Henry Smilie was arrested Thursday on a charge he billed Medicare up to $1.2 million in fraudulent or nonexistent services to the elderly and homebound.

Federal agents executed search warrants at the company’s offices in Chicago and Schaumburg, according to a federal criminal complaint unsealed after his arrest.

One former employee told federal agents that if documented services provided to patients did not meet the minimum threshold required to receive Medicare payments, Smilie told him he should just “make it up,” according to the charges.

The undercover operative secretly recorded visits from doctors with Home Physician Services in which he explained to them how he visited friends outside of his home, according to the complaint. He could also be seen on video recordings walking outside and tending to his dogs during the visits, authorities said.

Yet the company certified him as homebound in bills submitted to Medicare and continued house calls to him, according to the charges.

In one recorded conversation, an employee of another of the home health companies affiliated with Home Physician Services cautioned the man to be careful about what he said about his activities.

“When the doctor and the nurse come and put you in the program … between me and you, do not say that you occasionally drive,” the employee said. “All right? ’Cuz if not, they will not approve you. All right?”

“OK,” the undercover source said. “Do not say what?”

“Do not say that you occasionally drive. … Because if not, Medicare laws

— they will not approve you. All right?”

Former employees described how the company billed Medicare for services not fully performed, or for unnecessary services, according to the criminal complaint. One ex-employee said Home Physician Services directed staff to bill Medicare for the maximum amount, even if the services provided did not justify such a cost.

That same employee also told agents he saw Smilie rubber stamp physicians’ signatures to create orders. When the man told Smilie that practice may be illegal, Smilie laughed and said some of the company’s other practices also were against the law, according to the complaint.

Another former employee said the company performed swabs of each patient, whether or not it was medically necessary, then charged $1,000 to Medicare for each test, according to the complaint.

One doctor involved in the case told federal agents he knew some of the patients he saw were not homebound, but he continued to see them out of concern for their health. At one point he told agents that less than half of the patients he saw at Home Physician Services were truly confined to the home.

Smilie, 54, of Lake Zurich, was released on bond after making an initial appearance in federal court.

The charges against Smilie stem from an investigation of the federal Medicare Fraud Strike Force, which began operating in Chicago in February 2011.

The Medicare fraud count carries a maximum penalty of 10 years in prison, a $250,000 fine and mandatory restitution.

Medicare Fraud and the Home Health Industry

The Pitfalls of Internet Medicine

We’re in an era where it’s no longer reasonable to pretend that patients aren’t Googling their symptoms — or to try to get them not to. Why must we feign calm, asking the doctor “What do you think it is?” when the question on our minds is “DOC, IS IT CANCER? GOOGLE SAID IT’S CANCER.” And doctors, you’re using Wikipedia too. You’re not above it. No one’s above it. Let’s end this pussyfooting about.

So, assuming patients are going to Google, and that the Internet is a vast sea containing both accurate and wildly unhelpful health information, the question is how to steer people toward the former and away from the latter.

As a slightly more official alternative to going to Yahoo! Answers, typing in “What is this rash?” and waiting for the geniuses who frequent those forums to dispense their wisdom, many companies and organizations have developed “symptom checkers.” The most well-known of these is probably WebMD’s, but there are also symptom checkers run by the Mayo Clinic, the American Academy of Pediatrics, and the U.K.’s National Health Service. You plug in your symptoms, and an algorithm spits back possible diagnoses, and/or whether you should seek treatment or deal with the issue yourself.

But according to a new study published in The BMJ, these symptom checkers vary widely in accuracy. Researchers from Harvard Medical School and Boston’s Children’s Hospital input 45 “patient vignettes”—some common, some uncommon conditions—into 23 different symptom checkers.

On average, they included the correct diagnosis in the first three results 51 percent of the time, and included it in the first 20 results 58 percent of the time (the individual checkers ranged from 34 percent to 84 percent). The chances of getting the right diagnosis listed first were really hit or miss. On the low end of the spectrum MEDoctor listed the correct condition first 5 percent of the time; on the high end, DocResponse listed it 50 percent of the time. Understandably, the sites did better at identifying common conditions than uncommon ones.

Of the symptom checkers that gave triage advice (whether the condition requires medical attention), they did so “appropriately,” according to the researchers, 57 percent of the time. Triage advice was more likely to be correct for more urgent conditions or uncommon conditions.

“Although there was a range of performance across symptom checkers, overall they had deficits in both diagnosis and triage accuracy,” the study reads. It’s also possible that the study over-estimated how accurate these sites are, because the patient vignettes it used included clinical terms (like “mouth ulcers,” for example) that a layperson might not necessarily know or recognize his symptoms as.

One of the other issues the researchers saw was that the sites weren’t very good, on the whole, at recommending self-care when it was appropriate, which could lead to people going to the ER or doctor’s office for something that would go away on its own, or that could be treated over the counter.

As the researchers point out, the central question here is what role symptom checkers play for people. A lot of the antipathy toward people researching symptoms online I think is predicated on the idea that this would replace a doctor’s visit. If that were true, it would be a bad thing.

“If symptom checkers are seen as a replacement for seeing a physician, they are likely an inferior alternative,” the study reads. “It is believed that physicians have a diagnostic accuracy rate of 85 [to] 90 percent. However, in-person physician visits might be the wrong comparison because patients are likely not using symptom checkers to obtain a definitive diagnosis but for quick and accessible guidance.”

Most people are hopefully savvy enough not to take a WebMD result as a diagnosis. They’re probably just trying to figure out how seriously to take their condition. In that case, it might be less important that symptom checkers spit out the right diagnosis (and including it among 19 incorrect diagnoses is not super helpful anyway), and more important that they tell the searcher whether her symptoms warrant a trip to the hospital.

It seems symptom checkers are now erring on the side of caution—“In two thirds of standardized patient evaluations where medical attention was not necessary, we found symptom checkers encouraged care,” the study reads. And whether people follow the sites’ advice depends on how much they trust them. In another study published in the Journal of Medical Internet Research, older adults were skeptical about diagnoses they found online. So they might seek the opinion of a doctor anyway. (And this new study, finding that symptom checkers are often inaccurate, probably won’t do much to instill trust.)

And as the researchers note in the BMJ study, “some patients researching health conditions online are motivated by fear, and the listing of concerning diagnoses by symptom checkers could contribute to hypochondriasis and ‘cyberchondria,’ which describes the escalated anxiety associated with self diagnosis on the Internet. Together, confusion, risk-averse triage advice, and cyberchondria could mean that symptom checkers encourage patients to receive care unnecessarily and thus increase healthcare spending.”

This hits on an important point: Fear is intricately tied into the decisions people make about their healthcare. Which means they aren’t always logical. Even if someone just has a cold, and WebMD lists a cold as the first possible diagnosis, if it also lists cancer farther down, what’s the eye going to be drawn to? If the Mayo Clinic’s website advises you to wait a few days and see if your symptoms improve before going to the doctor, are you going to wait and worry or drive to the hospital anyway just for the relief of getting an answer? I suspect it depends on the person’s temperament. But if symptom checkers were more reliable (and people knew it), perhaps they could be a tool for managing fear rather than fueling it. +

The Pitfalls of Internet Medicine

Changing Criteria for Home Health Services

Criteria for grading in-home services
The Centers for Medicare & Medicaid Services gave thousands of home health agencies a rating of one to five stars based on how often:

• the home health team began its patients’ care in a timely manner.

• the team made sure patients received a flu shot for the current flu season.

• the team taught patients (or their family caregivers) about their prescribed drugs.

• home health patients got better at walking or moving around.

• patients got better at getting in and out of bed.

• patients had less pain when moving around.

• patients got better at bathing.

• patients’ breathing improved.

• patients had to be admitted to the hospital.

Changing Criteria for Home Health Services