At the undergraduate level, classes on medical ethics tend to focus on the big ticket items like abortion, euthanasia, and social justice. Personally, I find the more interesting clinical cases involve relatively minor issues that accumulate to create problems. Privacy is one example.
A large amount of information in the mother’s prenatal records potentially impacts a newborn’s care. Ideally, the EHR is transferring data to the newborn’s chart, but not everything automatically populates in the newborn record, so there will be times when a pediatrician needs to review the mother’s chart.
- The criteria for selecting which mothers’ charts to review involve racial profiling.
- Access to mental health records involving addiction treatment requires special authorization. State laws and hospital policies will vary.
- Mom is a Hollywood celebrity and, while reviewing her chart, prurient curiosity extends the search to records of her cosmetic surgeries.
In my opinion, most of what is and isn’t permissible is determined by medical custom and not by statutes. The judiciary reserves the power to intervene, so medical custom should be informed by laws and by legal principles. But, the primary basis for these decisions should be a commitment to patient advocacy and to common sense, which in this situation means, “Would the typical reasonable person be upset if she learned I had done something without telling her?” If the answer to that question is yes, or in any way equivocal, I think ethics would dictate obtaining consent or at least assent.
Opiate addiction has quadrupled in the past 15 years. Almost all states now have prescription registries to help detect doctor shopping, multiple prescribers, and misdirection. If you are prescribing an opiate, it is ethically reasonable (and now the law) for you to make writing the prescription contingent on your patient agreeing to your consulting the registry. No consent, no prescription.
I think the facts of that case (writing a prescription) can be distinguished (a legal term) from the case of a neonatologist accessing the narcotic registry of the mother while on a fishing expedition to find evidence that might help the baby. Perhaps it is okay with the mother’s uncoerced consent, but otherwise I think that practice reeks as an unreasonable search. Ethically and legally, it has parallels to Ferguson v. City of Charleston (SCOTUS 2001).
That was a 6-3 Supreme Court decision, so, while I agree with the majority, you may find hospital lawyers who disagree. Overall, I assert that consent and privacy are best considered ethically as advocacy for the patient and not as legalistic forms that the physician must complete.
The reverse situation also occurs. Sometimes maternal health information is placed into the newborn’s chart that doesn’t need to be there. For example, common practice has been to designate mom, after delivery, as G4P2022. This contains the information that mother has had two therapeutic abortions. Does that information belong in a newborn’s chart? Especially in the era of the EHR where this information will hang around forever and will be easily obtained by the baby 16 years later when she can access all her medical information online. Will the mother be upset for her teenage daughter to learn that mom has had two abortions? Is that private information, belonging to the mother, that was given in confidence to her obstetrician? I advocate respecting privacy.
I have similar concerns about STD information being transferred from maternal charts to the newborn’s EHR. A maternal history of gonorrhea treated 8 years previously is unlikely to be relevant and should not populate the newborn’s EHR. I can make an argument that chlamydia detected and treated during the pregnancy might be useful to the baby’s pediatrician because neither treatment nor tests of cure are perfect. Perhaps, it could exist as a Snapchat-type record and disappear from the newborn’s record in a year if no respiratory symptoms occur.
I’m aware of efforts to destigmatize abortion and STDs, but, until that occurs, sensitive information should be handled delicately to preserve privacy. That is a major component of the Hippocratic Oath.
Dr. Powell is a pediatric hospitalist and clinical ethics consultant living in St. Louis.