News & Insights

Counsel’s Corner: Obligation to Inform Patient’s Employer or Governmental Agency

February 25, 2019

By Paul Giancola, Esq.

Counsel’s Corner: Obligation to Inform Patient’s Employer or Governmental Agency

Q:  On occasion I see patients, such as pilots, truck drivers and active military personnel, who present with problems, such as alcohol/drug misuse or seizures that may affect their ability to perform jobs, which could pose a risk to public safety. In this situation do I have a legal obligation to inform my patient’s employer or the government of my patient’s condition?

A:  It is a difficult clinical situation when a patient has a medical or mental condition that may adversely impact their fitness to perform a job having public safety implications, but the patient does not want to take your recommendation to refrain from working.  The dilemma is created because your relationship with the patient is based on trust with an obligation to place the patient’s welfare above obligations to others.  However, there are some clear-cut exceptions to your obligation to the patient such as a patient’s realistic threat to inflict serious harm on an identified individual.  Although the circumstances presented in the question do not involve preventative violence to an identifiable individual, they do involve a possible threat to the public generally.  Where to opt for disclosure over confidentiality is never easy.

If you believe your patient has an impairment affecting their ability to drive, whether a commercial vehicle or a car, the patient should be counselled not to drive. You should document in the medical record your recommendation the patient refrain from driving as well as the patient’s agreement with your recommendation.  In addition, attempt to obtain a release from the patient allowing you to notify the appropriate agency and/or employer regarding your recommendation that the patient not operate a motor vehicle.  If you do not obtain the release to disclose the recommendation, follow-up with the patient to ensure that your recommendation is being followed may depend on your relationship with the patient and whether you feel you can trust the patient to follow your advice.  You may also want to obtain the patient’s permission to alert their family regarding the instruction not to drive.  

If you believe your advice to refrain from driving may be ignored, you may not inform the employer, but the Health Insurance Portability and Accountability Act (HIPAA) and AMA Ethical Opinion E-2.24 allows, but does not require, disclosure of protected health information (PHI) by physicians if they believe it is necessary to avert or lessen a serious threat to public health or safety.  See, 45 CFR 164.512(j). The commentary to the Rule notes the person making the disclosure should have a reasonable belief the disclosure is necessary (i.e., made in good faith).  However, the Commentary also notes the Rule is not meant to replace the duty to warn that most states have adopted by statute or case law. If disclosure is made to the state department of motor vehicles, you are required to limit the PHI disclosed to the “minimum necessary” to accomplish the intended purpose of the disclosure.  If you disclose in good faith most states provide for immunity from a civil liability to the patient based on the disclosure.

Looking at other examples, if you have reason to believe a patient who is a commercial truck driver is planning on driving despite your advice, most states and the Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA), allow but do not require disclosure.  You may contact the FMCSA Office of Medical Programs, the state department of motor vehicles or law enforcement depending on the level of your concern.  FMCSA even allows you to anonymously report.  

If your patient is a pilot, you may report to the Federal Aviation Administration (FAA).  The pilot also has an obligation to self-report.  If your patient is active military, you may report, depending upon the circumstances, to a civilian agency as above.   In an exception to the general rule about not reporting to employers, the military has published a detailed policy explaining that civilian physicians are permitted, but not required under HIPAA, to disclose PHI of armed forces personnel to command authorities.  If, however, a mental health or substance abuse condition is involved, then a military physician or Department of Defense covered entity is required to disclose to the Commander.  For military patients, the Military Command Exception and Disclosing of PHI of Armed Forces Personnel Policy should be consulted.

In summary, if you have a patient you are concerned about, you should thoroughly document the concern and the recommendation to refrain from working/driving/flying.  In most situations, the patient will agree and you may not need to do anything further.  However, you should consider asking the patient whether you may disclose to other persons/entities such as family/employer/government agency and you may need to confirm whether the patient is following your recommendation.  If you remain concerned the patient will not follow your recommendation and the patient has refused to allow you to report, you may report the patient to the applicable agency.  Finally, if you are seriously concerned and have a reasonable belief that disclosure is necessary to prevent or lessen a serious threat to public safety, you should report. Otherwise, if your patient is involved in an accident, you may be subject to tort liability.  

The standard you are held to is whether a reasonable professional in your circumstances would have reported the patient to the authorities.  If you do report, only the minimum necessary information should be provided.  Please note that if your patient is a physician or other health care practitioner, there may also be a mandatory reporting obligation to the professional’s licensing board.

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