How present is the idiom 'off the record' in healthcare?

What is an ethical physician to do when a patient provides pertinent information but insists that it be kept "off the record?" While there is an expectation of confidentiality between doctor and patient, there are instances when a patient will only reveal certain information if the doctor agrees not to record it in their medical files. While most patients wouldn't expect a doctor to keep anything secret, some doctors have found that this situation happens more often than they are comfortable with.

Ethical issues can arise when a patient has waived confidentiality and agreed to release their medical records to others, such as an employer or insurance company. After the patient has made this waiver, has he lost his right to ask that something be kept "off the record"? Is a physician responsible for keeping the secrets of a patient, at his request, even after he has specifically said to others that he is releasing his information? Furthermore, how does this affect making critical decisions based on the assumed accuracy of the records?

Ethical dilemmas also extend to safety of the patient and other healthcare workers, because medical records are meant to convey all information to other healthcare providers, says Deborah L. Kasman MD, MA, medical bioethics director, Kaiser Permanente Medical Center, Baldwin Park, CA. "If I do not record an incident of domestic abuse after seeing bruises, and another provider sees bruises, he or she might run tests looking for a blood disorder," Kasman says. "The patient's true cause of the problem may continue untreated."

She notes that if the record of domestic abuse is not included, the next provider also could make an inaccurate assessment of high blood pressure, anxiety, depression, or another condition, and mistreat the root of other problems. "I use this example, because if domestic abuse is in the chart, the patient may feel embarrassed, and if the perpetrator saw the documentation, there could be inflammatory consequences at home," Kasman says. "I also use this example, because if there is suspected domestic abuse, and the perpetrator is not convicted, there are other implications to this record in the chart."

A patient's request that healthcare-related information be kept off the record, places the physician in a difficult situation. While physicians are obligated to protect a patient's private information and to maintain confidentiality, they are also obligated to keep accurate records of relevant information, to avoid harm to patients, to make treatment recommendations that are likely to benefit the patient, to be responsible stewards of healthcare resources, and to protect their colleagues from harm, says Felicia Cohn, PhD, bioethics director at Kaiser Permanente, Orange County, CA. "Such a request creates an ethical conflict between these values," Cohn says. "Which values conflict will depend on the actual circumstances of the request."

Key considerations include the precedent the act will establish and both the short-term and long-term consequences of the act to the patient and others, she says. "While electing to prioritize confidentiality may appear justified or inappropriate in the immediate situation, reflection on the implications is important," Cohn says.

Another ethical dilemma concerns the provider-insurer relationship, Kasman says. "A bill is still generated," she says. "When the diagnosis codes on the billing form are inaccurate, in essence the provider could be considered to [be lying] to the insurer."

Although these so-called lies might take the form of lying by omission, it launches the slippery slope between trust with the insurers for accurate billing information, according to Kasman. "On the small end of the scale, it could be considered stretching the truth, unless the provider truly does not bill for his or her time for the issue," she says. "But if lab tests or cultures are required, then the billing coding, again, could in essence be a lie. This is the start to what, in the most excessive of situations, could be considered fraud."

Lee Tannenbaum, MD, board certified addiction specialist, Bel Air Center for Addictions, Bel Air, MD, notes, "I think that patients think that things are more 'off the cuff' than they actually are. It is only when patients begin to think about specific pieces of information, and they are involved in some type of process where they are at risk for having their medical records examined, that they think of asking for off the record."

According to Cohn, the most important thing a physician can do is to ask the patient, 'why?' "An informed response will be much more effective than one based on assumptions or an emotional reaction," she says. With this knowledge, the physician can address the reasons for the request and the implications for honoring it or not, and work with the patient to determine what and how best to document, says Cohn. "Patients often share information with their healthcare professionals that they would not reveal even to family or close friends. Some of this information is relevant to their health, while other information may not be."

The physician should work with the patient to assess the options available, such as honoring the request, documenting fully, documenting only what is necessary, and using alternative language, she suggests.

Suffering the consequences?

Tannenbaum believes some patients are attempting to avoid possible consequences of having their condition, or the extent of their condition documented.

Significant past medical history, results of drug testing or history of drug use, and extra-marital sexual encounters are a few of instances in which a patient would ask a physician to keep mum, and these situations are ones in which it gets tricky. "It gets to the core of trying to help people and the idea that I should do no harm. I want to be able to help patients get appropriate healthcare and avoid preventable consequences," says Tannenbaum. "For example, I would want a patient who had contracted a sexually transmitted disease from an extra-marital affair to be able to get effective treatment, but if he fails to confide in me, because of his fear of what will be in his permanent medical record, this may not happen, and he could in fact go on to put others at risk," he says.

In a worst case scenario, a physician could harm a patient by hiding information, Kasman says. "If the hidden information causes medical harm to the patient, the doctor could be accused of malpractice, and the harm to the patient could lead to a justifiable settlement," she says. Also, if the insurance company finds out about 'mis-coding' to protect the patient, they can drop the physician from their panel. "I suspect there could be fines or charges related to medical fraud, regarding miscoding to the insurers," says Kasman.

"I would say this form of having the patient influence record keeping does not occur that often, but does occur, possibly more often with employment physicals. Someone could ask to keep past medical illness off the form for an insurance physical, but that is fraud, and would have consequences to the doctor."

An issue of trust

If the doctor agrees to collude with the patient, he is forfeiting the trust of the court system, employers, insurance companies, and others, says Tennenbaum.

There are two sides to the trust issue, Kasman says. "If I lie in the chart to protect my patient and to gain their trust, to protect the patient, essentially I am practicing a form of paternalism, she says. "I am also asking the patient to trust me because I will lie for them."

She believes that in the long run, the patient can ask for the physician to lie on the chart, and lie to the insurers for their benefit, they could also ask if the physician is lying to them, and it could erode trust. "So this issue of being true to one's profession, is clearly an ethical issue that impacts the [concern] of patient trust," Kasman says.

According to Cohn, there are several other reasons why a patient would want certain information kept off the record. "An athlete may wish not to document an injury or condition that might limit or preclude his ability to play; a patient diagnosed with HIV may want to avoid the stigma associated with that diagnosis or difficulties obtaining insurance due to this pre-existing condition," says Cohn. Other reasons could be an employee seeking to remain on disability might not want his recovery documented. "A young girl may fear that her parents will learn of an unintended pregnancy or a sexually transmitted disease. A woman may fear that her abusive partner will discover she disclosed the source of her injuries and will punish her for doing so. There will be good reasons and bad, based in fear, embarrassment, misunderstanding, and other emotions and concerns," says Cohn.

The problem is significant, Tannenbaum says. "It puts me in the position of violating professional codes of conduct, it exposes me to malpractice concerns, and it changes the rules of the doctor/patient relationship. The patient is asking me to become more of a friend to them than a physician, willing to jeopardize my personal welfare and ethics on their behalf," he says. "This is a boundary that I do not want to cross."

The rights of the patient

While a patient does have rights, they cannot expect an insurance company to pay for care without certain information, such as a diagnosis, according to Tannenbaum.

"I will document everything for my own protection, but the patient does not have to reveal to anyone that he has seen me for any reason or consent to the release of his medical records," he says. "If the patient chooses to lie on an insurance form, or in court, that is their prerogative; however, a patient does not have the right to ask me to be complicit in their attempts to commit fraud."

Cohn notes that though there are requirements regarding some documentation — for example, prescriptions or informed consent — what is written in the medical record is largely a matter of healthcare professional discretion. Documentation varies based on training, experience, the patient's needs, the perceived relevance to clinical care, and even the time available for documentation and the clinician's memory.

"The ramifications of keeping information off the record will vary with the type of information, Cohn says. "For example, there may be no ramifications, responsibility for harms to a patient, responsibility for harms to other healthcare professionals, or legal issues such as accusations of insurance fraud."

Sources

  • Felicia Cohn, PhD, Bioethics Director, Kaiser Permanente, Orange County, CA. E-mail: Felicia.G.Cohn@kp.org.
  • Deborah L. Kasman, MD, MA, Medical Bioethics Director, Kaiser Permanente Medical Center, Baldwin Park, CA. Email: Deborah.L.Kasman@kp.org.
  • Lee Tannenbaum, MD, Board Certified Addiction Specialist, Bel Air Center for Addictions, Bel Air, MD. E-mail: leetann1@comcast.net.