We have written several Straight Track articles about the confidentiality of Doctor / Patient relations. In short, a doctor, hospital or other medical service provider cannot release your medical records without your written permission.
We have recommended that you do not sign broad overreaching authorizations which would open your entire medical history to whomever the authorization is given. There may be occasions when you might want to do this, but we suggest that one of these times is not when you have sustained an on-the-job injury on the railroad.
These authorization forms are usually pushed in front of you for signature shortly after you suffer a work injury, when all you really want to do is to get treatment for the work injury and relief from your pain. You will not be thinking clearly under these circumstances, and you certainly will not be in a mood to read long forms. Therefore, prepare yourself as to how you will respond to this situation long before you sustain any work injury.
WHAT YOU NEED TO KNOW BEFOREHAND
Before you even get to the medical facility, the railroad will probably have you fill out an Injury Report which may contain a medical release authorization subsection, or the release may be a separate form. We recommend that you do not sign either of these documents. There will be time later when you are better able to consider your options and discuss them with Hoey & Farina, your FELA railroad accident attorneys.
When you finally get to the hospital, or to your doctor's office, you will be confronted with another batch of forms -- one of which will be a medical authorization release. It may have the letters "HIPAA" somewhere in the title, or somewhere in the body of the form. "HIPAA" refers to the Federal Legislation that, among many other things, regulates the confidentiality of your medical information. If you can, put off signing this authorization until after you have received treatment, and / or you are not under the influence of pain medication.
If you must sign the document, be sure to write above your signature the words:
"This authorization applies only to my injury of [DATE OF INJURY]."
If you don't include this sentence, your entire medical history file may be released. A part of the "HIPAA" form may authorize treatment information be provided to the Insurance Company that will be paying your bill. This is perfectly OK, so you certainly want to sign this form.
THE IMPORTANCE OF YOUR OWN DOCTOR
Sooner or later, you will have your own treating physician. The relationship with your treating doctor is really the focus of this article. We have all heard of the term "doctor / patient confidentiality." This simply means that whatever you tell to your doctor will not go any farther.
While that is generally true, doctor / patient confidentiality does not mean absolute confidentiality. Your doctor keeps a record of your visits to his office. These are referred to as "Chart Notes." In these notes, the doctor records not only his observations of your condition and what he plans for your future treatment, but -- of equal importance -- he writes down what you tell him about how you feel and your status of returning to your job on the railroad.
Obviously, the doctor cannot write down every word you utter. The doctor typically writes what he understands to be the general meaning of what you said. In all probability, he knows little, if anything, about railroading. He certainly doesn't know many of the terms you routinely use to describe your job duties. Initially, he probably will not know exactly how you were injured. Be sure to tell your doctor in the simplest terms exactly what caused your on-duty injury.
Describe what caused your work injury, just as if you were telling someone who has never seen or worked for a railroad.
As you are getting better, and you begin to discuss returning to work, be sure to explain to the doctor why you may feel reluctant to return to work. Tell your doctor in detail what your job duties are, and be sure to point out the duties that particularly apply to the part of your body that was injured.
For example, if you are recovering from a knee injury, you may get to the point where you are walking without a limp and can squat and get back up again without assistance at the doctor's office. At this point, the doctor may think that you can go back to work.
You should tell him that your job requires you to walk on rough, uneven, sloping ballast (be sure to tell him that ballast is rock of various sizes some of which are six inches long or thick) and this ballast shifts under foot when you perform your job. Your job duties also require you to squat and crouch repeatedly between rail cars to couple air hoses, and to climb onto rail cars to apply or release hand brakes where the sill step may be a couple of feet off the ground. Furthermore, all of these job duties may be required to be done while railroad cars are moving on an adjacent track only a few feet away.
After hearing such a detailed explanation of your job duties, most doctors will understand that your reluctance to go back to work is due to your concerns over safety and re-injury rather than just wanting more time off work. You certainly never want a doctor to write down in his chart that you are not well motivated to return to work, or, worse yet, you are a "malingerer." The doctor might do that if YOU don't explain clearly to your doctor why you believe it is unsafe for you to return to work at this point in time. Most doctors don't understand that you must be able to perform all of your duties in order to perform your job on the railroad, and you cannot gradually "work back into shape" on the railroad.
CHARTS & CLAIMS
As you are reading this you are probably asking why this is important if what the doctor writes down is protected by doctor / patient confidentiality. It is true that if you don't sign a broad medical authorization release, nobody is likely to see the doctor's chart notes. But -- and this is a big but -- if you make a claim for damages from the railroad, and particularly if you file a lawsuit, your medical history becomes an open book for the railroad's lawyers to read and pick apart.
If you have a claim, the railroad will subpoena all of your records including doctor's and nurse's notes. When the doctor is deposed (that is, he gives sworn testimony about your care and treatment), your doctor will refer to his chart notes during the deposition, and the railroad lawyers also will have read these notes.
If you have not clearly explained to your doctor the problems you are having with the injured part of your body, your pain, and / or your safety and re-injury related concerns of returning to work, the doctor will be left only to rely on his written general impression of what he thought you said. This impression, and his testimony, may not be accurate or favorable to your case.
When he testifies during the deposition, the doctor most likely will not remember you, let alone the specifics of any conversation you had with him. The doctor will rely almost exclusively on his chart notes to refresh his memory of your treatment. This is why it is so important that you and your doctor are communicating effectively during the treatment period. While you don't have the right to review the doctor's notes during treatment, you can protect yourself by communicating with your doctor in such a manner that there can be little doubt down the road as to what you told him during the treatment of your injury.
Because of the importance of this issue, we recommend that you call Hoey & Farina for free legal advice before you see your treating physician so that we can review with you the things that are most important to your care, treatment, and your ability to return to work with the railroad. While you may never need a lawyer to represent you, you do need legal advice.