Medical data private? Judge: No

HMSA says any of its employees
can see a patient's records,
and a state judge agrees

By Ian Y. Lind

The Hawaii Medical Service Association told a state judge earlier this year that its employees have a legal right to look through confidential medical records of any past or present subscriber, for any reason, with or without specific authorization.

The state's largest medical insurer said its members have no right to object to disclosure because they waive their right to privacy when signing up for coverage.

Honolulu physician Elsie Blossom Wang sued to block disclosure of patient records, but Circuit Judge Kevin Chang agreed with HMSA and in September ordered Wang to turn over the requested records.

HMSA's access to medical information, which virtually eliminates any area of total privacy between doctors and patients, is described in detail in the ongoing case.

Chang's decision is being challenged, but it spotlights a growing national debate over the right to personal privacy in a health care system increasingly dominated by information-hungry insurance companies and managed-care organizations.

HMSA was fishing through medical records in this case because of an unverified allegation of possible billing fraud, court records show.

"We have a mandate to protect our members' interests against fraud and abuse," said HMSA spokesman Fred Fortin. "We take it seriously, we are very aggressive about it, and we make no apology for it." The insurer routinely examines or copies medical files from hospitals and doctors' offices for doctor certifications, efficiency studies and investigations of complaints or suspected fraud.

HMSA also claims the right to get records about medical services it doesn't pay for, including those paid directly by a patient or billed to another insurer.

This may be routine for HMSA, but it's a revelation to patients who believe conversations with a doctor, like those with a lawyer or priest, are confidential and legally protected from snooping.

HMSA is not alone among insurers in pushing aside the barriers of privacy, but it dominates Hawaii's health care system with more than 600,000 members.

Wang went to court last year to block an HMSA request for copies of 15 medical files after the company refused to produce authorizations signed by the patients.

HMSA said it is entitled to the confidential patient information because members sign a blanket agreement to release medical records for billing purposes when they first apply for coverage. HMSA further said its contract with participating doctors requires them to issue patient records on demand, even without patient authorization.

Besides, the company argued, any potential violations of personal privacy are outweighed by the public interest in keeping health care costs down by allowing it "to investigate claims in an efficient, expedient manner, as a term and condition of the plan."

Wang strongly disagrees, and says the disagreement involves the heart of the doctor-patient relationship.

"People expect privacy," said Wang, who has practiced medicine in Hawaii since 1977. "When you tell your doctor something sensitive, you assume they are not going to report it to the government, to your employer, or even to HMSA without your OK."

"I respect the patient's right to privacy and believe it is my sacred obligation as a physician to protect their confidentiality," Wang said.

Wang says she has always provided insurance companies basic information about diagnosis and treatment needed for billing purposes.

"I just don't think copies of medical records should be given lightly to anyone, and certainly not without the patient's consent," Wang said.

Wang said the nature of medical records is often misunderstood.

"The doctor or the hospital owns the paper that the information is printed on, but the patient owns the information and the right to privacy. So the doctor cannot contract away, give away, or sell the patient's privacy."

"It doesn't matter what the HMSA contract says. As a doctor, you can't give away something that doesn't belong to you.

"This is the key distinction, and the doctors don't understand it, the judge doesn't understand it, but patients understand it viscerally," Wang said.

Fortin said Wang's statements "create an undue concern in the community about the privacy of their very serious medical information. We would not tolerate that, and a health plan wouldn't be successful for very long if that was the case."

HMSA argued in court that Wang's objections to disclosure were frivolous, but two national medical organizations are taking similar stands.

The American Medical Association and the Massachusetts Medical Society, which publishes the New England Journal of Medicine, say patients have a fundamental right to privacy that should be honored unless they give consent to disclosure of sensitive information.

As a result, the groups say insurers should limit requests to the information or portion of a medical record "absolutely necessary" for an immediate and specific purpose, and insurers should wherever possible be given only information in which patients' identity is not disclosed.

Privacy issues directly affect medical care, said Joseph Heyman, former president of the Massachusetts Medical Society.

"The problem is that patients cannot have a private relationship with their physician anymore," Heyman said. "Because of privacy concerns, patients don't tell us things that we need to know to treat them, or we don't record the information to protect it from disclosure."

Heyman said doctors sometimes try to record sensitive information in personal codes, but risk being unable to readily decode it when the information is needed later.

"It's a terrible, terrible problem and something needs to be done about it," Heyman said.

Doctor’s patients say
HMSA invading privacy

Patients of Honolulu doctor Elsie Blossom Wang are angry and frightened by Hawaii Medical Service Association's demands for their medical records.

A state judge overruled Wang's objections earlier this year and ordered her to comply with HMSA's request to turn over the records.

Wang's patients, reflecting widespread concern about personal privacy, suggest that while HMSA may have won the legal skirmish, its intrusive procedures are likely to meet further opposition.

"The funny thing is, when you tell people about this, they don't believe it," said Jerry Tokars, president of Armstrong Building Maintenance and a patient of Wang's for two decades. "People say, HMSA can't do that, can they?"

"It's frightening," Tokars said. "Where's America going when we lose this kind of privacy? Those are my records, and HMSA has never contacted me, never asked me anything, never told me anything."

"She's a Don Quixote," said Harry Frickelton, who credits Wang with proper diagnosis of his medical condition. "She takes a strong stand on this privacy thing, and I'm happy she does."

Frickelton said he was contacted by an HMSA representative, who had questions about one visit to Wang's office but asked for records of five visits to disguise the insurer's specific interest.

Similarly, court records show that when HMSA originally requested 15 of Wang's medical files, the records included 14 patients selected arbitrarily as a smokescreen for the one they really wanted to examine.

"So to protect the confidentiality of one member, HMSA was willing to violate 14 others' privacy for no reason," Wang said.

Alfred Anawati, president of Marsico Ltd., said in an affidavit that HMSA never notified him of its interest in his medical files.

"And I do not recall that any HMSA representatives ever informed me at the time of enrollment or during my long relationship with them that I or my employees give up their right to privacy and confidentiality when we sign up for their medical benefits program," Anawati said.

Court records show HMSA even launched an undercover operation after the insurer was sued by Wang.

According to HMSA memos, an investigator was outfitted with a fake member number, then posed as a patient and made an appointment with Wang. He observed her office operation, made notes on her procedures, gathered forms used in her office, then reported back to HMSA, the documents show.

Spokesman Fred Fortin downplayed patients' fears. He said the insurer deals with sensitive information every day, and is governed by strict rules when it obtains information from patients or their doctors.

"Our concerns about protecting the privacy of medical records is very real," Fortin said.

Fortin said HMSA has no plans to revise its existing policies, and full access to patient records remains part of the new contract doctors are currently being asked to sign.

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