nbauman's Journal: Medical privacy: You have none. Psych notes are public

Your most private thoughts that you share with your psychotherapist have been scanned and merged with your general medical records, where they are now available to anybody who sues your insurance company over a fender-bender auto accident, if your hospital is like Stanford Hospital & Clinics (and most are). That's what Patricia Galvin found out when she sued her therapist, clinical psychologist Rachel Manber, for disclosing her therapy notes, even though Manber assured Galvin that their notes would be confidential. When therapy notes are merged with general records, they lose their special protection under HIPAA, and anyone with a subpoena can get them. This story about Galvin from the Wall Street Journal is now available from the Pittsburgh Post-Gazette http://www.post-gazette.com/pg/06362/749444-114.stm free to cheapskates without subscription. Another good reason for medical privacy: Some companies fire diabetics for ostensible safety reasons, even though there's no evidence that they're unsafe, according to the New York Times http://www.nytimes.com/2006/12/26/health/26workplace.html
U.S. privacy protection is even weaker than Europe's http://it.slashdot.org/article.pl?sid=07/01/27/0743217
A lawyer told me how to protect your medical confidentiality: use a false name, pay cash, don't trust computers.

WSJ, 26 Dec 2006, Medical dilemma: spread of records stirs patient fears of privacy erosion; Ms. Galvin's insurer studies psychotherapist's notes; a dispute over the rules; complaint tally hits 23,896, Theo Francis.

(My notes, for people who are too lazy to even click on the link:)

In 1996, after her fiance died suddenly, Patricia Galvin left New York for San Francisco and was hired by Heller Ehrman LLP.

In 2000, Galvin began psychotherapy sessions at Stanford Hospital & Clinics with clinical psychologist Rachel Manber, who discussed her problems at work, her fiance's death, and her relationships with family, friends and co-workers. Manber assured Galvin that her notes would be confidential.

"I would never have engaged in psychotherapy with her if she did not promise me these notes were under lock and key."

In 2001, Galvin was rear-ended at a red light and suffered 4 herniated disks, which worsened.

In 2003, she applied for long-term disability. Her employer's carrier, UnumProvident Corp., said it would deny her claim unless she signed a release.

Manber assured Galvin her therapy notes would not be turned over. 3 months later, Unum denied her claim, because of psychotherapy notes about "working on a case" and a job interview in New York, which, Unum said, showed she was able to work. Galvin says they misinterpreted the notes.

In 2004, Galvin sued Manber, Stanford and Unum for malpractice and invasion of privacy, under California law. Galvin said "my most private thoughts, my personal tragedies, secrets about other people" were exposed.

In 2005, Galvin learned that Stanford had scanned Manber's notes into its system, making them part of her basic medical record. Stanford sent this file to Unum and the other driver.

Stanford said that "psychotherapy notes that are kept together with the patient's other medical records are not defined as 'psychotherapy notes' under HIPAA." It would be "impracticable" to keep them separate.

The health-care industry is scanning documents into electronic record systems. HIPAA gives psychotherapy notes special protection, but not when mixed in with general medical records.

Peter Swire, law professor, Ohio State U., explains why they wrote the rule giving confidentiality only to separate psychotherapy notes.

Stanford refused to separate her psychotherapy notes from other medical records. "Any time anybody asks for my medical records, my psychotherapy notes are going to be turned over."

In 2006, DHHS rejected Galvan's HIPAA complaint. From Apr-Nov 2003, DHHS had 23,896 privacy complaints, but hasn't taken any action. HIPAA exceptions allow release in connection with "payment" or "health-care operations."

Galvan, 51, is representing herself, because she couldn't find a California attorney with privacy experience.

Deborah Peel, Austin TX, psychiatrist and head of Patient Privacy Rights, says, "How many women want somebody to know whether they are on birth control?"

http://online.wsj.com/article/SB116709136139859229.html

NYT, 26 Dec 2006, Costs of a crisis: Diabetics confront a tangle of workplace laws, N.R. Kleinfield.

Some companies fire diabetics for ostensible safety reasons, even though there's no evidence that they're unsafe. Courts nationwide have split on whether diabetes is a disability under the test that a "major life activity" is "substantially limited".

John Steigauf, 47, was a truck mechanic for United Parcel Service, but UPS put him on leave because of his diabetes. UPS claimed his blood sugar might plummet while he tested a truck, causing an accident, and he couldn't get an interstate commercial driver's license with insulin-dependent diabetes. Some insulin-dependent diabetics are prone to dizziness, fainting or muddled judgment. His disability payment is $431, half his pay. EEOC ruled that he was subject to discrimination.

In 2002, ConAgra Foods withdrew a job offer to Rudy Rodriguez at a Texas baked bean plant because of his type 2 diabetes, when a doctor decided he couldn't work safely; an appeals court found for Rodriguez.

A mortgage loan officer in Oregon was forbidden to eat at her desk, and eventually fired.

A Sears lingere saleswoman in Illinois with nerve damage quit when Sears wouldn't let her cut through a stockroom; Sears paid her $150,000.

A worker at a Wisconsin candy company was fired after asking where he could dispose of his insulin needles.

Many diabetics conceal their illness on the job, says Brian T. McMahon, Virginia Commonwealth U.

http://www.nytimes.com/2006/12/26/health/26workplace.html