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What legal ground do I have to refuse to participate in a non-agreeable practice of handling medical information?

Wednesday July 23, 2014
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Question:

Dear Nancy,

I am an occupational RN working for a large metropolitan hospital, but I work at an off-site location as I am contracted to complete physical exams for a major company. Part of the record-keeping process is to maintain records for the company at that medical site and to have the original copies maintained at their general offices. There are only two copies made, so one can be filed at each site.

These physical exams are considered confidential information, yet I have been asked to fax employee physical records to a secretary for review at an unsecured site. The physicals we complete belong to the company not the hospital's occupational health department.

What legal ground do I have to refuse to participate in this non-agreeable practice of record-keeping and securing the contracted company's medical information?

Florence



Dear Nancy replies:

Dear Florence,

First, it is important to note that the physicals done by you are really the patients' physicals and information. They belong neither to the hospital nor the company you contract with to provide the physicals. Where they are stored is important, of course, but not controlling as to ownership. Because the physical forms contain employee information, they are really “owned” by the employee.

Because the information is the employee's and is confidential, only the employee can provide his or her informed consent to have the records sent to anyone else, whomever that person may be. Confidentiality and privacy issues have been around in the common law and in state statutory and federal law for some time, so without consent of the employee to send the information anywhere, it should not be done. If an entity would want to fax/mail/email information about an employee's physical to anyone else, it can have the employee sign a consent form allowing the release to a specific entity
or entities.

Although it is impossible to know for sure without a specific analysis of the situation you describe in your question, including the employees involved, other confidentiality and privacy laws may apply. For example, the Occupational and Safety Health Act, the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act have confidentiality and privacy provisions that may apply to some of those employees for whom you do physicals.

Another concern for you is your state nurse practice act and rules and the requirements for you as a nurse licensee to maintain nurse-patient confidentiality. Releasing the records you describe in the manner you describe may well violate your mandate to maintain nurse-patient confidentiality.

You might want to consider consulting with a nurse attorney or other attorney in your state concerning this situation in order to get specific advice that you can share with whomever is requesting this information be provided in this manner You should also consult with the American Association of Occupational Health Nurses for specific advice about how to handle this request.

Regards,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.