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Required Reporting of Privileged Information

| 3 min read
Former Associate
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Arizona physicians must report to the Medical Board “any information that appears to show that a doctor of medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of medicine.”   A.R.S. § 32-1451(A).  In fact, failure to make such a report is an act of unprofessional conduct.  Id.

Physicians typically learn of the unprofessional or incompetent practice of others either: (1) when seeing a new patient for the first time and learning of their past providers’ practices; or (2) witnessing the potentially unprofessional practices of colleagues or peers.  Occasionally, however, a physician may have another provider as her patient.  In this case, if a medical condition is causing the patient to be “mentally or physically unable to safely engage in the practice of medicine,” the treating physician likely has an obligation to report her patient to the Arizona Medical Board See id.

The obligation and potential report, however, raise concerns for physician-patient privilege, HIPAA protections, and other privacy issues.  The Arizona Medical Board has taken the position that these concerns should not stop the treating physician from making the report.  There is support for this position under Arizona law.  For example, state statutes making physician-patient communications privileged do not apply to Medical Board proceedings.  A.R.S. § 32-1451(D).

But does the federal government agree?  Under HIPAA, covered entities may disclose individually identifiable health information when the disclosure is “required by law,” but only under limited circumstances.   45 C.F.R. § 164.512(a).  Individually identifiable health information may also be disclosed for “health oversight activities.”   45 C.F.R. § 164.512(d).  The language of the exceptions is narrow and does not make clear that it applies to a medical board complaint about one’s own patient.  To date, it does not appear that the United States Department of Health and Human Services has issued guidance on the application of these exceptions to this scenario.  Further complicating things, even if the health oversight exception applies, the information provided must be limited to the “minimum necessary.”   45 C.F.R. § 164.502(b).  This could make it difficult to decide what exactly should be reported.

Regardless of how the relevant information is learned the decision to report another physician to the Medical Board is a difficult one.  The practice of medicine is challenging and stressful, it is impossible to avoid wrestling with whether the suspected unsafe provider is really dangerous or just having a bad day.  Additional concerns arise, however, when making the mandatory report also threatens patient trust and confidentiality.

Keeping in mind the importance of complying with the law and making mandatory reports, physicians and other health care providers should carefully consider patient privacy and privilege implications of reporting a physician who is also a patient.  If there is doubt, it may be wise to consult with an institutional ethics committee or legal counsel familiar with licensing and privacy matters.