Tuesday, November 6, 2012

Privacy and Elections - Cultural Expectations

While I generally believe that, for the most part, there really isn't any privacy anymore despite the "right" to it. From a practical perspective, if you really want to find something out about someone, including their medical information, you can get it. There may be a cost of acquisition, but "individually identifiable information" (what the bureaucrats like to call it in the promulgation of silly regulations attempting to protect the un-protectable) is for the most part easily obtained.

The only exception is if you disappear from society. And that is unlikely if you pay taxes, own property (including intangible property such as bank accounts), get medical service, work, vote, etc.

So obviously I don't buy the arguments of privacy zealots - privacy disappeared a long, long time ago.

The Georgia Supreme Court in a recent opinion seems to recognize that privacy is a fallacy and ruled that once a claimant enters the workers' compensation arena she can not count on the "right of privacy" to protect her medical information.

Laura McRae had sought benefits for the third-degree burns to her esophagus she suffered while working at Arby's Restaurant Group six years ago when she mistook a cup of lye for her beverage and drank from it.

Arby's did not controvert her claim for benefits and began paying her compensation in March 2006.

In September 2009, McRae's treating gastroenterologist reported that McRae had reached maximum medical improvement, with a 65% permanent body impairment. McRae then requested an administrative hearing on her claim for temporary total disability and permanent partial disability.

After receiving the report, Arby's attorneys tried to schedule an ex parte consultation with McRae's doctor, but the doctor declined to meet with them absent express permission from McRae. Arby's then asked the administrative law judge to intervene (I'm assuming that they attempted to get permission from McRae and she refused), and the judge directed McRae to authorize her gastroenterologist to speak with the defense attorneys. When McRae refused, the judge sanctioned her by removing her claim from the hearing calendar.

The State Board of Workers' Compensation Appellate Division upheld the judge's action, as did the superior court, but last December, a narrow majority of the Georgia Court of Appeals reversed concluding that a claimant's waiver of her medical privacy under Georgia's Workers' Compensation Act was limited to a release of "tangible documentation" related to the medical condition forming the basis of her claim.

The Supreme Court, in a unanimous decision Monday authored by Presiding Justice Hugh Thompson, said the act's waiver was not so narrow. Under the plain and unambiguous language of the act, Thompson wrote that, "any privilege the employee may have had in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits or is receiving weekly income benefits or the employer has paid any medical expenses."

The point that the Supreme Court makes is that there is information that is necessary for the processing (or limitation) of a claim where someone else is footing the bill and that if there is a concern on the part of others that they can and should participate in the process.

"Under our statutory scheme, physicians may agree to be interviewed only on the condition that their own counsel, or the employee or her counsel, is present," or "may request that the interview be audio or video recorded," he said. The doctor also can share the substance of the interview with the employee and her counsel.

Additionally, Thompson cautioned that an employee maintains her right to privacy in any health information not pertaining to her compensable injury. He urged the State Board of Workers’ Compensation and litigants who request ex parte communications with a treating physician to make sure they "set parameters consistent with privacy protections afforded under state and federal law" to make sure their conversation is appropriately related to the compensable injury and does not exceed the bounds of the privilege waived by the worker.

Seems that the Supreme Court was essentially telling the State Board of Workers' Compensation to promulgate regulations on the topic so everyone has the same rules in place.

According to interviews in the WorkCompCentral story on the case, in Georgia a doctor has to be an approved member of an employer's panel of physicians in order to be the authorized initial provider on a workers' compensation claim. This means that any time an employee gets hurt, the employee has to see one of a limited number of doctors.

Consequently there is a built in conflict of interest because of the pressure a physician may feel if he or she wishes to continue to receive referrals from that employer.

The defense side of the argument is that ex parte communications with the treating physician can speed the claims process along, which helps workers get access to treatment and benefits faster.

I don't buy that for a second, in particular if the communication is by the defense attorneys. I was a defense attorney. My obligation was to the employer/carrier which is to say when I talked to a doctor about a case my interest was in getting as much defensible information as possible.

Sure, that may help the claims process along by using that information to deny benefits...

Here's the real deal as acknowledged by Judge Richard Thompson, chairman of the State Board of Workers’ Compensation.

Judge Thompson told our reporter that the court's "statutory construction analysis" was "pretty clear" and that the ruling returns things to "the way it was from Day One, before this litigation took place."

In other words, in the state of Georgia, ex parte communications by the defense with the treating doctor was standard procedure, was part of Georgia's workers' compensation culture, and this case challenged that culture.

Fair enough. Workers' compensation, by design, is a state by state system. Each state recognizes its own culture, and builds its laws to fit that culture. This is why we elect officials from municipal to state to federal - there are issues that are best dealt with through varying degrees of government.

Speaking of which, today of course is Election Day - the supreme day of politics in the United States where the average citizen gets some voice and participation in running the government.

Hopefully the insidious campaigning of the well financed politicians and voter referendums does not adversely affect voter turn out and people take this privilege seriously - we don't know all the issues, and we don't know all the politicians, but we don't have to vote on everything either.

And honestly, whether you vote Republican or Democrat probably won't make a big difference. Both parties, in my pessimistic view, are pretty much the same - candidates will tell you what they think you want to hear in order to get your vote so they can wrangle some power through the governmental system.

Many will be glued to the television following election results local, state wide and nationally. Many more likely will not follow the drama and will carry on with their normal lives.

Some will go shopping. I got an email advertisement this morning announcing a "one-day only" election day sale. Ugh - you're kidding me. Even the sanctity of a national election becomes marketing fodder.

Frankly, truly insulting.

Generally attributed to infamous Chicago mobster Al Capone, "vote early and vote often" should probably actually be "vote early and shop often" (Capone did - he bought lots of votes).

Voting with your pocket book takes on new meaning.

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