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HMSA says
any of its employees
can see a patient's records,
and a state judge
agrees
By Ian Y. Lind
Star-Bulletin
The
Hawaii Medical Service Association told a state judge earlier this year
that its employees have a legal right to look through confidential medical
records of any past or present subscriber, for any reason, with or without
specific authorization.
The state's largest medical insurer said its
members have no right to object to disclosure because they waive their
right to privacy when signing up for coverage.
Honolulu physician Elsie Blossom Wang sued to
block disclosure of patient records, but Circuit Judge Kevin Chang agreed
with HMSA and in September ordered Wang to turn over the requested
records.
HMSA's access to medical information, which
virtually eliminates any area of total privacy between doctors and
patients, is described in detail in the ongoing case.
Chang's decision is being challenged, but it
spotlights a growing national debate over the right to personal privacy in
a health care system increasingly dominated by information-hungry
insurance companies and managed-care organizations.
HMSA was fishing through medical records in
this case because of an unverified allegation of possible billing fraud,
court records show.
"We have a mandate to protect our members'
interests against fraud and abuse," said HMSA spokesman Fred Fortin. "We
take it seriously, we are very aggressive about it, and we make no apology
for it." The insurer routinely examines or copies medical files from
hospitals and doctors' offices for doctor certifications, efficiency
studies and investigations of complaints or suspected fraud.
HMSA also claims the right to get records
about medical services it doesn't pay for, including those paid directly
by a patient or billed to another insurer.
This may be routine for HMSA, but it's a
revelation to patients who believe conversations with a doctor, like those
with a lawyer or priest, are confidential and legally protected from
snooping.
HMSA is not alone among insurers in pushing
aside the barriers of privacy, but it dominates Hawaii's health care
system with more than 600,000 members.
Wang went to court last year to block an HMSA
request for copies of 15 medical files after the company refused to
produce authorizations signed by the patients.
HMSA said it is entitled to the confidential
patient information because members sign a blanket agreement to release
medical records for billing purposes when they first apply for coverage.
HMSA further said its contract with participating doctors requires them to
issue patient records on demand, even without patient authorization.
Besides, the company argued, any potential
violations of personal privacy are outweighed by the public interest in
keeping health care costs down by allowing it "to investigate claims in an
efficient, expedient manner, as a term and condition of the plan."
Wang strongly disagrees, and says the
disagreement involves the heart of the doctor-patient relationship.
"People expect privacy," said Wang, who has
practiced medicine in Hawaii since 1977. "When you tell your doctor
something sensitive, you assume they are not going to report it to the
government, to your employer, or even to HMSA without your OK."
"I respect the patient's right to privacy and
believe it is my sacred obligation as a physician to protect their
confidentiality," Wang said.
Wang says she has always provided insurance
companies basic information about diagnosis and treatment needed for
billing purposes.
"I just don't think copies of medical records
should be given lightly to anyone, and certainly not without the patient's
consent," Wang said.
Wang said the nature of medical records is
often misunderstood.
"The doctor or the hospital owns the paper
that the information is printed on, but the patient owns the information
and the right to privacy. So the doctor cannot contract away, give away,
or sell the patient's privacy."
"It doesn't matter what the HMSA contract
says. As a doctor, you can't give away something that doesn't belong to
you.
"This is the key distinction, and the doctors
don't understand it, the judge doesn't understand it, but patients
understand it viscerally," Wang said.
Fortin said Wang's statements "create an
undue concern in the community about the privacy of their very serious
medical information. We would not tolerate that, and a health plan
wouldn't be successful for very long if that was the case."
HMSA argued in court that Wang's objections
to disclosure were frivolous, but two national medical organizations are
taking similar stands.
The American Medical Association and the
Massachusetts Medical Society, which publishes the New England Journal of
Medicine, say patients have a fundamental right to privacy that should be
honored unless they give consent to disclosure of sensitive
information.
As a result, the groups say insurers should
limit requests to the information or portion of a medical record
"absolutely necessary" for an immediate and specific purpose, and insurers
should wherever possible be given only information in which patients'
identity is not disclosed.
Privacy issues directly affect medical care,
said Joseph Heyman, former president of the Massachusetts Medical
Society.
"The problem is that patients cannot have a
private relationship with their physician anymore," Heyman said. "Because
of privacy concerns, patients don't tell us things that we need to know to
treat them, or we don't record the information to protect it from
disclosure."
Heyman said doctors sometimes try to record
sensitive information in personal codes, but risk being unable to readily
decode it when the information is needed later.
"It's a terrible, terrible problem and
something needs to be done about it," Heyman said.
Doctor’s
patients say
HMSA invading privacy
Patients
of Honolulu doctor Elsie Blossom Wang are angry and frightened by Hawaii
Medical Service Association's demands for their medical records.
A state judge overruled Wang's objections
earlier this year and ordered her to comply with HMSA's request to turn
over the records.
Wang's patients, reflecting widespread
concern about personal privacy, suggest that while HMSA may have won the
legal skirmish, its intrusive procedures are likely to meet further
opposition.
"The funny thing is, when you tell people
about this, they don't believe it," said Jerry Tokars, president of
Armstrong Building Maintenance and a patient of Wang's for two decades.
"People say, HMSA can't do that, can they?"
"It's frightening," Tokars said. "Where's
America going when we lose this kind of privacy? Those are my records, and
HMSA has never contacted me, never asked me anything, never told me
anything."
"She's a Don Quixote," said Harry Frickelton,
who credits Wang with proper diagnosis of his medical condition. "She
takes a strong stand on this privacy thing, and I'm happy she does."
Frickelton said he was contacted by an HMSA
representative, who had questions about one visit to Wang's office but
asked for records of five visits to disguise the insurer's specific
interest.
Similarly, court records show that when HMSA
originally requested 15 of Wang's medical files, the records included 14
patients selected arbitrarily as a smokescreen for the one they really
wanted to examine.
"So to protect the confidentiality of one
member, HMSA was willing to violate 14 others' privacy for no reason,"
Wang said.
Alfred Anawati, president of Marsico Ltd.,
said in an affidavit that HMSA never notified him of its interest in his
medical files.
"And I do not recall that any HMSA
representatives ever informed me at the time of enrollment or during my
long relationship with them that I or my employees give up their right to
privacy and confidentiality when we sign up for their medical benefits
program," Anawati said.
Court records show HMSA even launched an
undercover operation after the insurer was sued by Wang.
According to HMSA memos, an investigator was
outfitted with a fake member number, then posed as a patient and made an
appointment with Wang. He observed her office operation, made notes on her
procedures, gathered forms used in her office, then reported back to HMSA,
the documents show.
Spokesman Fred Fortin downplayed patients'
fears. He said the insurer deals with sensitive information every day, and
is governed by strict rules when it obtains information from patients or
their doctors.
"Our concerns about protecting the privacy of
medical records is very real," Fortin said.
Fortin said HMSA has no plans to revise its
existing policies, and full access to patient records remains part of the
new contract doctors are currently being asked to sign.
© 1997 Honolulu
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