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HMSA says any of its employees
can see a patient's records,
and a state judge agrees
By Ian Y.
Lind
Star-Bulletin
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.
© 1997 Honolulu Star-Bulletin
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