by Dianne Glasscoe Watterson, RDH, BS, MBA
[email protected]
Dear Dianne,
I have been working as a dental hygienist for more than 20 years, with the last eight years in the same office. My dilemma has to do with another hygienist in the practice who left to go to work for a dentist in a neighboring town. I was told that her reason for leaving was that she had some back problems, plus there were issues dealing with a critically ill family member.
Recently I saw a patient who was accustomed to seeing the other hygienist. The patient was upset that she was not informed that her regular hygienist had left. The patient continued to ask questions, and I asked her if she was friendly outside the office with the hygienist. She replied that she was, so I relayed that it was my understanding that the former hygienist had some back problems and that she was also dealing with a critically ill family member. I mentioned that the patient should ask my former coworker whenever she saw her.
Shortly thereafter, my boss called me to say my former coworker was very upset because of what I shared with the patient. She stated that I had violated her HIPAA rights. I did not feel that what I shared was detrimental or harmful in any way. I was only trying to help her friend understand why she left the practice.
Now I keep wondering if my coworker was being truthful about why she left. Maybe she got caught in a lie. The accusation against me is very unsettling. Did I violate her HIPAA rights? I told my boss that from now on when any patient asks why the hygienist left, I will just say I don't know the reason.
Just sign me,
Learned my Lesson
Dear Learned,
The first problem I see here is related to a lack of communication from the business desk to the patients who were accustomed to seeing the hygienist who left. I don't know how long the former hygienist worked in the practice, but it is quite possible that she had developed a "following" of patients. Being creatures of habit, people often become accustomed to one particular hygienist. Familiarity is comforting, especially with people who are phobic. Think about how you are about your hair and your favorite hairdresser. I don't want anyone but Denise touching my hair, and if Denise is ill, I'll wait until she is better to have my hair done. The only way I'll change hairdressers is if Denise retires or dies.
Your current dilemma could have been avoided if a business assistant had displayed common courtesy and relayed to the patient (either at the reminder call or when the patient arrived) that "Lisa" had left the practice, and that you would be taking care of her dental visit. She could also use the opportunity to express confidence in your ability to take care of her and tell the patient you have a long history in the profession. Evidently, that communication was lacking, and the patient was unpleasantly surprised to find out the hygienist she expected to see was no longer there.
Under some circumstances, I believe it is appropriate to contact patients with a letter or card informing them of a pending departure. When I left a practice where I had worked for 10 years to take a teaching position, my boss felt it was entirely appropriate, even desirable, to let my loyal following know I was leaving. I composed a letter that told them how much I appreciated their trust in me, and also introduced my replacement.
However, if I had left that practice under negative circumstances, it would have been illegal to contact patients, especially if I had invited them to follow me to another practice. The patients in the practice "belong" to the practice owner/s, and attempts to draw them away from the practice are illegal.
According to Wayne Smith, PhD, in an article titled, "Workplace Privacy,"1 there are four basic workplace privacy claims available to employees:
▲ Intrusion into an individual's private solitude or seclusion
▲ Public disclosure of private facts
▲ Use of an individual's name or likeness
▲ Portraying an individual in a false light
In your case, there could be a claim about public disclosure of private facts. Smith posits, "An employee may claim invasion of privacy when an employer discloses private and arguably embarrassing facts about an employee to a wide audience without permission. The employee must demonstrate that the information was genuinely private, the employer's publication of the information was generally offensive by reasonable standards, and the employee suffered injury as a result.
Several issues come to light. In your situation, it was not the employer who disclosed information. Your coworker may have difficulty proving the second point, that the information was generally offensive. If you were sued in this matter, the complainant would have the burden to show that, under the circumstances, publishing the facts in question would have been highly offensive to a reasonable person of ordinary sensibilities.
Disclosing information about alleged physical problems could be seen as problematic, especially if such information influences an employer to hire someone else without known physical issues. However, in this case you mentioned the hygienist had taken another position.
You did not distribute the information to a wide audience. According to an article on the Citizen Media Law Project entitled "Publication of Private Facts," "A plaintiff bringing a publication of private facts claim must show that the defendant made a public disclosure of the fact or facts in question. This means communication to the public at large, or to so many people that the matter must be regarded as likely to become public knowledge. As a general matter, publication of information on a Web site or blog (or any other publicly available platform on the Internet) will satisfy this element. On the other hand, it might not be a public disclosure if you simply convey private information about someone in an e-mail to one or two other people, so long as it is understood that the information is not meant for further dissemination to the public. (http://www.citmedialaw.org/legal-guide/publication-private-facts"
The HIPAA Privacy Rule provides federal protections for personal health information held by covered entities. HIPAA laws were designed to protect electronic transfer of information, and privacy issues do exist within HIPAA. However, HIPAA laws are not relevant to this situation in that your coworker was not your patient. The HIPAA Security Rule applies to health plans, health care clearinghouses, and any health-care provider who transmits health information in electronic form.
When any staff member leaves a practice, the doctor or office administrator should instruct staff members on how to handle any patient inquiries that arise. Patients like seeing the familiar faces of staff members whom they have come to know and trust. Inquiries related to the whereabouts of a particular staff member should be anticipated when that staff member leaves. If the circumstances are negative, it's usually best to just say, "It is a private matter, and I'm not at liberty to discuss the situation."
Best wishes,
Dianne
References
1. www.suite101.com/content/workplace-privacy-a305067#ixzz16mTPspAo
Dianne Glasscoe Watterson, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. She is CEO of Professional Dental Management, based in Frederick, Md. To contact Glasscoe Watterson for speaking or consulting, call (301) 874-5240 or e-mail [email protected]. Visit her Web site at www.professionaldentalmgmt.com.
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