Health Law Pointers - Volume XIV, No. 1

Professional Behavior and the Law
(Gossip, Rumors & Innuendo)
To reduce the potential liability exposure for businesses and professionals personally, all divisive forms of communication should be suppressed.  Gossip, rumor and innuendo frequently is hurtful, and can be derisive or destructive.  This conduct not only exists in its traditional settings, but has expanded electronically to include the social media (Facebook, Twitter, My Space, You Tube) and newer means of communication such as blogs, wikis, instant messaging and text messaging.  Failure to have appropriate office guidelines or policies in place to combat this form of communication can lead to a “hostile” or “toxic” work environment.
The impact on the workplace of this unwanted and unprofessional conduct is profound, particularly in lost productivity.  Missed communications, misunderstandings, loss in trust, conflict, erosion of teamwork, employee turnover and an increased management burden are only some of the ways in which lost productivity may be measured.
Your workforce should be counseled on how to combat “gossip.”  The first defense is “not to play.”  Additionally, the offensive content, language or communication should be reported to a supervisor or other designated individual.  Other workplace responses may be appropriate, including the adoption of a social media and/or e-mail policy, and monitoring of communication upon the advice of counsel.
Individual behavior between professionals is a different, but related problem.  There is a heightened need for multidisciplinary cooperation and teamwork and inter-professional norms of conduct.  People have to work cooperatively with others through fair and honest dealings with colleagues, having respect for all, acting exclusively for the beneficence of patients, being trustworthy, and treating everyone in an unbiased and non-prejudicial manner.  Professionals in “medical command” must work harmoniously or less than optimal patient care will result. 
If one believes that bad behavior is the moral equivalent of impairment or incompetency, or is tantamount to abuse, mistreatment or coercion, then acting in an incorrigible and unprofessional manner will inspire peer review proceedings and/or other professional discipline.  Better to comply with the following guiding principles for a virtuous physician:
*          Religious Traditions (“What is hateful to you, do not do to your fellow”)
*          Professional Code of Ethics
*          Universal cultural values
*          Social norms (laws)
*          Rely on professional role models

Confidentiality and the Law
Our constitutional privacy protections stem principally from the 1st Amendment (Privacy of Beliefs), 3rd Amendment (No Quartering of Soldiers), 4th Amendment (No Unreasonable Searches), 5th Amendment (Privacy of Personal Information through the Privilege against Self-Incrimination) and the 14th Amendment “Liberty” Guarantee.  Additionally, the confidentiality principle is firmly rooted in professional standards.  It is uniformly acknowledged today that information disclosed during the course of the professional relationship is highly confidential.  Physicians who act recklessly (whether or not done deliberately) risk professional discipline and other sanctions.
The Healthcare Information Portability & Availability Act of 1996 (HIPAA) was enacted in response to a heightened concern by Congress of compromised patient privacy resulting from the proliferation of computers and computerization of record-keeping.  The HIPAA rules set forth very clear standards governing patient privacy, and appropriate safeguards to assure proper handling of this protected health information have been developed in response to the security rules.
Several higher profile privacy breaches by healthcare professionals in recent years involving celebrities (George Clooney and Brittany Spears) have stimulated adoption of the so-called “zero tolerance rule” in many institutions and professional practices.  Nobody in their right mind wishes to expose their practice to liability in a private lawsuit, or risk an investigation by the DHHS Office for Civil Rights.  People improperly accessing patient records are not much different than “Peeping Toms” and should be disciplined under the clear written policies of the practice.  Compliance “best practices” now require professional offices to have written policies in place, engage in continuous training, voluntarily undertake corrective action, apply disciplinary sanctions when needed, and mitigate any unwanted disclosure if a violation is discovered.  Honorable intentions are irrelevant.
Don’t be one of those people “stuff just happens to.”  Have safeguards in place now, before trouble appears.

Evolving Nature of Patient-Physician Relationship
Times have changed.  The old paternalistic model has been replaced by a new alliance in which a collaborative approach is presumed and the centrality of the patient predominates.  Many factors have contributed to this reformed relationship, including changing social norms, new medical technologies, the internet, a more knowledgeable and active “consumer” of healthcare services, and growing legal protections for patient rights.
New York law does not specify the precise moment when the patient-physician relationship commences; but the patient’s expectation of care may govern the applicable legal theory.  Once initiated, the bond of confidence and trust between patients and their physician may be strengthened by following simple and practical guidelines:

A strong patient-physician relationship has several advantages: (1) increased patient satisfaction, (2) increased physician satisfaction (3) greater likelihood of patient compliance with recommended therapies and (4) a higher tolerance for errors and omissions.