Psychiatrist wins privacy fight with HMO

  1. Friday, March 14, 2003

    By Mackenzie Carpenter, Post-Gazette Staff Writer
    http://www.post-gazette.com/healthsc...thealth1p1.asp

    Dr. Daniel Shrager remembers his initial discomfort, in the early 1990s, when his managed care provider requested that he submit "treatment reviews" of his patients. Reluctantly, the Shadyside psychiatrist complied, while worrying about their privacy rights.

    But three years ago, when Magellan Health Services Inc. told Shrager to submit five complete patient files -- with names, addresses and personal details -- for a "quality assurance" review, he refused. In response, the insurance carrier tried to terminate his participation in the program.

    Shrager sued, claiming that patient confidentiality rules prohibited insurers from taking a wholesale look at a patient's records without the patient's permission. He also argued that the insurer, not the psychiatrist, should approach the patient for that permission.

    On Monday, in what is believed to be one of the first cases of its kind in the country, Allegheny County Common Pleas Judge Joseph James ordered that Shrager be reinstated. James told Highmark Blue Cross Blue Shield and its subcontractors, Magellan and Green Spring Health Services, that they had gone too far in ordering Shrager to reveal confidential patient information.

    "Dr. Shrager's refusal to comply with this request was justified, and his termination was not warranted," said James, citing Pennsylvania law on patient confidentiality. But the judge also said it was Shrager's responsibility to provide the files to the insurer, although he could do so with a substantial amount of information deleted.

    The deleted material would include not just names and addresses, but deeply personal information that might be used to identify the patient.

    "I had patients who were therapists themselves, patients who were prominent in the Pittsburgh community, and this is a small enough town that it's hard to make somebody unrecognizable," said Shrager. "It's quite possible and even likely that one of the charts that the reviewer would have gone through was someone they knew.

    "People's dreams, wishes and fantasies are in my notes. And I was trained to never reveal any of that. My patients are told by me that nothing leaves this office unless there's a life-threatening situation."

    Shrager, who has practiced with state board certification for about 25 years, sued the companies in September 2000, claiming they had slandered him to his clients and arguing that their ruling would cause him to lose about 40 percent of his patients. The companies had written letters and telephoned many of Shrager's clients, informing them that he no longer was an active provider and advising his patients to seek another doctor.

    At the time the lawsuit was filed, Shrager's lawyer, Ray Middleman, said several patients told Shrager they thought he had "abandoned" and "deserted them, all of which is untrue."

    Shrager also said he was concerned that if his patients knew what they had told him in confidence would be reviewed by the insurance carriers, they might not be as forthcoming in treatment sessions.

    James ordered a stay on Shrager's initial termination, ruling that Shrager was entitled to administrative hearings. Those hearings resulted in his formal termination by Magellan in April 2001.

    But James stayed that decision, too, pending the outcome of Shrager's trial, which took place over two days in October.

    While Shrager called the judges' decision "a victory for patient's rights," Highmark and Magellan officials didn't see it that way.

    "The way we see it, the court has ordered him to do what we had originally required him to do, under his contract, and that is to release 'blinded' patient records," said Kirsten Brumsworth, a spokeswoman for Magellan.

    The term "blinded" is used to describe records in which information identifying the patient is deleted, or blinded out.

    Both Highmark and Magellan focused on language in the ruling that ordered Shrager to submit the records as supportive of their position, which is that patient records are needed in order to ensure quality care.

    Magellan, which is based in Columbia, Md., also disagreed with the judge's contention that its termination of Shrager was improper.

    "He refused to cooperate under the stipulations of the contract he had signed with us," Magellan said. "This case is always about insuring quality standards. We as a managed care organization have an important role in quality oversight of our network; and the review of medical records is a very important part of that. How do we know a member is receiving quality treatment unless we can review these records."

    The Pennsylvania Psychiatric Society was active "in a variety of ways" in Shrager's lawsuit, said Gwen Lehman, the organization's executive director, although she declined to be more specific.

    "This really was about patients and their right to confidentiality," Lehman said. "The patients' rights to consent and control their [records'] release is a matter of great importance."

    Dr. Jeffrey Metzner, who chairs a special council on psychiatry and the law for the American Psychiatric Association, said it's rare to challenge insurers in court, as Shrager did.

    "There are probably some cases out there, but it's an expensive thing to do, and it also takes some courage," he said. He added that managed care organizations had been "chipping away at privacy rights for years. I think this decision is good for psychiatrists and good for patients."

    Magellan, which recently declared bankruptcy, is being sued along with Highmark, Green Spring Health Services Inc. and three regional Keystone Health Plans by the Pennsylvania Psychiatric Society, which contends that the companies are discouraging mental health treatment through cumbersome and restrictive rules

    Mackenzie Carpenter can be reached at mcarpenter@post-gazette.com or 412-263-1949.
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