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Disclosing to the family after the death of a patient Question: A patient with AIDS died without telling any of her family members that she had HIV. The family is now asking the cause of her death. Can the doctor/nurse tell her family that she died of AIDS without violating any confidentiality/privacy laws? Response: HIPAA, the Health Insurance Portability and Accountability Act which now controls the use of health information across the US, should prevent health care providers from disclosing information to others who are not involved in a patient's treatment. The answer also depends in part on whether there is a special state law that not only protects the confidentiality of HIV/AIDS-related information and whether that confidentiality right survives death. But there is a better question. Why would a doctor or nurse want to do something that their patient has made clear she does not want done? If the patient did not tell her family about her HIV status because she did not have time, if for instance she was diagnosed 14 minutes before she passed away, that short time frame should be taken into consideration. But if that isn't the case, then the doctor should assume that the patient had a chance to tell her family and expressly, specifically, purposefully chose not to! Given that kind of clear direction from the patient, why disclose? There better be a really, really good reason to give up the patient's secrets. Even if the patient never specifically said to her doctor, "Do not ever tell my mother that I have HIV" she has given instructions to those people in her life who know her status. She has given directions by example, and the fact that she did not specifically use words, and that the doctor-patient privilege may not apply, doesn't change the analysis. Here's the thing. Confidentiality laws are designed to remind each and every one of us who hold other people's secrets that the decision of what to do with that private information is not our decision to make. Laws that define the doctor-patient privilege or the attorney-client privilege, or laws like HIPAA that cover all health information, or specific laws that only target one single type of health information - all of them make clear that the person who gets to control the information is the person who is the subject of it. The most respectful, most considerate, most sensitive and professional and appropriate response to this situation is the best response. And if you consider the situation from the viewpoint of the now-deceased patient, then that means that the doctor must try to respect her decision to not tell her family. (I say "try" in the recognition that there could be some unusual other facts that create pressure on the doctor to really really really want to tell. Well, Doctor, call me and let's talk about it.) A word of advice to all patients who have chosen to keep their HIV status from their families: TELL YOUR DOCTOR IN WORDS ABOUT YOUR DECISION. If you tell your doctor not to disclose, then the doctor-patient privilege will be a lot more likely to protect your information. And a word of advice for all physicians and nurses, no matter what health conditions your patients face: ASK THEM IF THEY HAVE TOLD THEIR FAMILIES. Learn the boundaries of what the patient wants others to know, and then respect those boundaries. Answered by Kendra S. Kleber JD Explaining
HIV/AIDS-related legal rights and responsibilities in support of the
self-sufficiency, independence and quality of life of people living with
HIV/AIDS.
NOTE: The information on this site and in this message is not legal advice, and does not create or imply an attorney-client relationship or an offer to form such a relationship. It is just an opinion. Follow it, ignore it - your choice. But it is not legal advice upon which you can or should rely without consulting an attorney to advise you on your particular situation based on your particular facts and circumstances. |
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