Doctors can risk lawsuits when writing about patients

A column analyzing the impact of recent court decisions on physicians

By — Posted April 30, 2012.

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Experts say physicians who aspire to be authors should pay close attention to privacy laws before writing about past medical cases, even if they plan to change a patient’s identity.

A recent lawsuit before a Rhode Island federal court highlights the risks physicians may encounter. In the suit, former patient Gabrielle Lisnoff claims that Michael Stein, MD, caused her emotional distress when he allegedly chronicled her case without permission for his 2009 book, The Addict: One Patient, One Doctor, One Year. The book is described as a window into the world of prescription drug abuse and the personal account of a doctor “on the front lines of an epidemic.”

An attorney for Dr. Stein declined to comment for this article.

Writing about former patients, no matter what genre, raises a doctor’s potential for being sued. Although most doctors are aware of the Health Insurance Portability and Accountability Act requirements to which they are bound, lesser-known are the privacy laws that control publishing, whether it be a nonfiction book, a medical journal or an online blog post. Although being sued does not mean that plaintiffs have a valid case, referencing prior patients can bring claims of defamation, breach of privacy and violation of publicity rights.

“Especially in the post-HIPAA era, medical professionals — doctors in particular — have both ethical and legal duties to maintain the confidentiality of their patients,” said Howard G. Zaharoff, a Massachusetts-based attorney who represents authors and publishers. “Whatever they write, [doctors] have to find a way to do it without giving away the identities of the patients they’re writing about.”

Lisnoff alleges that Dr. Stein’s book includes details quoted or closely adapted from private facts she told him during treatment sessions, according to the complaint. Lisnoff was admitted into a suboxone maintenance program in 2005 overseen by Dr. Stein. She was treated by the doctor until 2010, according to court documents. Suboxone is commonly used to treat opioid addiction.

Lisnoff sued Dr. Stein in March in the U.S. District Court for the District of Rhode Island. Dr. Stein’s response to the lawsuit has not yet been filed, a court clerk said. An attorney for Lisnoff declined to comment for this article.

At the start of his book, Dr. Stein writes that the story is based on a real patient, but that he has attributed details and characteristics of other patients to her case. He writes that “in keeping with his medical oath,” he had to guard the confidentiality of all patients in the book. Stein is the author of five books, both fiction and nonfiction, including The Lonely Patient: How We Experience Illness, a book about the psychological and emotional impact of illness on patents. In an online video about The Addict, Dr. Stein says he hopes the book helps parents and friends of addicts and encourages them to move forward.

Use caution when publishing

Even best-selling authors have been sued over the content of their books. Kathryn Stockett, for example, was sued in 2011 by a maid in Stockett’s hometown over alleged similarities of the maid’s likeness in the novel The Help. John Grisham was sued in 2007 by a prosecutor and a law enforcement officer who alleged that Grisham’s nonfiction work, The Innocent Man: Murder and Injustice in a Small Town, was libelous. Both cases were dismissed.

Privacy laws vary from state to state, but, in general, authors can be sued for a range of claims, including violation of privacy, intrusion of seclusion and negligent publishing.

A privacy rights breach refers to published information about a patient’s personal life that has not been previously reported to the public, is not of public concern and the publication of which would be offensive to a reasonable person, Zaharoff said. Intrusion of seclusion stems from an unethical act of news gathering in which a writer obtains information from a place that people have a reasonable right to expect privacy. In the Lisnoff case, the plaintiff claimed that Dr. Stein solicited personal information during their medical visits for purposes of writing his book.

Negligent publishing refers to published material that ends in a reader’s harm or injury. This type of claim should be of particular concern to physicians, Zaharoff said. For example, if a doctor writes a book on dietary advice that leads to a reader becoming ill, a negligent publishing claim could arise.

“Even though you have no patient-doctor connection with readers, you certainly have a duty not to be negligent in what you’re writing about,” he said.

Doctors have several defenses to prove they are not liable in publishing lawsuits, said David Hudson Jr., an adjunct professor at Vanderbilt University Law School in Nashville, Tenn., who specializes in First Amendment cases. Authors can argue that the plaintiff was not identifiable, the published information was newsworthy or the disclosure was not really offensive. Lawsuits over books usually fail because the plaintiffs cannot show they were identified, he said.

Physician writers also must abide by additional HIPAA restrictions, said Patricia Markus, a North Carolina-based attorney and vice chair of the American Health Lawyer’s Assn. Health Information Technology Practice Group. She specializes in HIPAA privacy and compliance.

Federal law details 18 separate identifiers that doctors cannot include in any published documentation about past medical cases, if the material is written without the patient’s authorization, she said. Those include the patient’s name, address, ZIP code, phone number, dates of treatment, birth date and facial photograph.

Privacy rules do not change depending on the type of publication, Markus said.

“Privacy standards are not more lenient simply because the information is published in a medical journal for educational purposes as opposed to in a blog post as a way of recounting a day in the life of a surgeon,” she said in an email. “In each circumstance, HIPAA would not permit the disclosure of information containing the 18 identifiers without the patient’s permission.”

Journal process provides protections

A medical journal setting provides a more regulatory structure than, say, a social media environment, experts note. Study authors generally obtain patients’ consent before writing about case studies, said internist Anupam Jena, MD, a Harvard Medical School physician who has been published dozens of times in medical journals, including The Journal of the American Medical Association. Companies that supply case information usually censor identifying data before providing it, he added. Institutional review boards oversee the publication of all cases involving live subjects, further scrutinizing what data can be made public.

“It’s a very regulated process that is designed to ensure patient confidentiality and to ensure research methods are appropriate,” Dr. Jena said.

However, situations still can occur that expose doctors to potential privacy liability. For instance, when conducting clinical trials, doctor-researchers must be cautious when sharing trial data with third parties, Dr. Jena said. In addition, institutions providing patient data may forget to filter identifying information. In those cases, Dr. Jena recommends sending the data back and asking for revised information rather than researchers removing the data themselves.

“It’s the best option, because then no one can say, ‘Well, you had access to identifiable data,’ ” Dr. Jena said.

Obtain permission from patients

When deciding to write about a past medical case, Sherwin B. Nuland, MD, goes through the same process he has used since publishing his first book 30 years ago. He asks his patients for permission. If the patient says no, Dr. Nuland moves on. He would rather find another subject than obscure pertinent details about a case.

“It is very important in writing about clinical experiences with patients to have extremely detailed descriptions. If you’re teaching or talking about clinical medicine, the aberration of one detail may change the entire picture you are describing,” said Dr. Nuland, a retired surgeon and clinical professor of surgery at the Yale University School of Medicine. Dr. Nuland has written about 12 books, including The Uncertain Art: Thoughts on a Life in Medicine, which discusses the tension between privacy and truthful descriptions in medical writing.

While Dr. Nuland relies on verbal permission, Julie K. Silver, MD, recommends obtaining written authorization if doctors wish to pen a patient’s story. Documented permission lowers liability risks, especially if doctors plan to use some identifying details in the book.

Physicians also can fictionalize the case completely or use a composite of patients to combine into one case, said Dr. Silver, an assistant professor in the Dept. of Physical Medicine and Rehabilitation at Harvard Medical School. She also is chief editor of books for Harvard Health Publications.

Another option is changing all patient identifiers. In this instance, “it’s up to the writer to change whatever he or she thinks is important to keeping the identity of an individual a secret,” she said. “My own advice is to really make sure whatever details you do disclose are relevant to the story and pertinent to the reader’s understanding of what you’re trying to convey.”

Dr. Nuland advises doctors to put themselves in the shoes of the patient being described and think about how they would feel reading it. Would they be disturbed in any way?

“Writing about patients is a great privilege and carries an enormous moral responsibility, the same responsibility we take on when we treat sick people,” he said. “But it also carries an enormous responsibility to the society that will be reading these narratives.”

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