Protect confidentiality after employee’s ED visit

Question: Is it legally acceptable to call an employer to confirm a workers’ compensation visit to the emergency department (ED) of our hospital? Our clients’ employees sometimes get registered incorrectly when they visit the ED, either registered as a workers’ comp patient when they are not or vice versa. We are calling employers the day after the patient is registered as a workers’ comp patient to confirm that the employer is agreeing that the patient should be a workers’ comp case.

This seems necessary to properly handle the patient, but is there any legal problem with calling the employer?

Answer: There may be a very big problem. Though there is some gray area involving exactly how the patient presents with an injury and your agreement with the client, it is likely that you are breaching confidentiality by calling the employer the day after a worker visits the ED.

That’s the opinion of R. Stephen Trosty, JD, MHA, director of risk management at Mutual Insurance Corp. of America in East Lansing, OH. Trosty was very disturbed by the idea of ED staff sharing patient information with an occupational health provider without clear reason, saying that the information about the emergency visit is strictly confidential.

"The fact that you work in the same hospital as the emergency doctor doesn’t give you any right to that patient’s records," Trosty says. "It is blatantly illegal for the emergency physician to share that information with you just because you’ve flagged that patient as an employee of a company with which you do business. If I went to the emergency room at 3 a.m. with a back injury and you called my employer the next morning, I’d be furious."

Trosty’s company issues workers’ comp insurance, so he says he is sympathetic to the occupational health provider’s need to get the patient into its specialized treatment track as soon as possible after an emergency visit. Nevertheless, he says it is just plain illegal for the two hospital departments to share information without the patient’s consent. That does happen with some regularity, apparently. Occupational Health Management has reported on hospitals that solved the problem of patients being "lost" in the ED by employing a computer system, for instance, that instructs the emergency staff to notify the occupational health department whenever employees of a client company are treated. Trosty advises discontinuing any such system.

The matter gets a bit more complicated if the employee indicates to the emergency physician that the injury is work-related. In that case, the physician should inquire as to whether the injury might be covered by workers’ comp and suggest that the patient contact his employer immediately. Then the employer can contact the occupational health department to make sure the case is handled properly, Trosty says. The occupational health provider, on the other hand, should work with the employer to educate workers about how important it is to contact the employer after such an emergency visit. That is not a perfect solution from the occupational health provider’s perspective, but it avoids the legal trap.

"If the employee says the problem is work-related, that only muddies the issue," Trosty says. "The emergency doctor still can’t disclose anything to anyone who is not part of the employee’s treatment, and the occupational health department is not part of the treatment at that point. If the employee has signed a statement saying that communication like that is OK any time he goes to the hospital, that’s OK. But I doubt anybody signs a release like that."

There is one exception that can make it all right for the ED to share information about the patient. If the emergency physician determines that the patient should be referred to the occupational health department for treatment of something such as an occupational chemical exposure because you are familiar with the chemical exposures in that workplace, then you are legitimately becoming a part of the patient’s treatment. If the patient visits your clinic and tells you that the exposure occurred in the workplace, you can proceed as with any of your occupational health patients.

The real problem, as Trosty sees it, is the communication between the ED and the occupational health department. That is where the patient’s confidentiality is abused, he says. Any further spread of the information only makes the matter worse. It would be very easy for the occupational health provider to cause serious problems for the employee when contacting the company, Trosty notes. What if the patient hurt his back "on the job" but it’s a second job that your client doesn’t know about and would not approve of? The bottom line, Trosty says, is that the information obtained in the emergency department is no one else’s business until the employee says so.

"If you get your hands on that information without good reason, that’s bad enough," Trosty says. "If you contact the employer with that information, you’re making the situation much, much worse."