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The Role for Professional Judgment

Bernard Lo, MD; Laurie Dornbrand, MD, MPH; Nancy N. Dubler, LLB

JAMA. 2005;293:1766-1771.

Federal health privacy regulations, commonly known as the Health Insurance Portability and Accountability Act (HIPAA) regulations, came into effect in April 2003. Many clinicians and institutions have relied on consultants and risk managers to tell them how to implement these regulations. Much of the controversy and confusion over the HIPAA regulations concern so-called incidental disclosures. Some interpretations of the privacy regulations would limit essential communication and compromise good patient care. This article analyzes misconceptions regarding what the regulations say about incidental disclosures and discusses the reasons for such misunderstandings. Many misconceptions arise from gaps in the regulations. These gaps are appropriately filled by professional judgment informed by ethical guidelines. The communication should be necessary and effective for good patient care, and the risks of a breach of confidentiality should be proportional to the likely benefit for the patient’s care. The alternative for communication should be impractical. We offer specific recommendations to help physicians think through what incidental disclosures in patient care are ethically permissible and what safeguards ought to be taken. Physicians should work with risk managers and practice administrators to develop policies that promote good communication in patient care, while taking appropriate steps to protect patient privacy.

Author Affiliations: Program in Medical Ethics and Division of General Internal Medicine (Dr Lo), and Division of Geriatrics (Dr Dornbrand), Department of Medicine, University of California, San Francisco; and Department of Epidemiology and Social Medicine, Montefiore Medical Center, New York, NY (Ms Dubler).

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