Q&A: Overhearing patient examinations in a busy emergency department

Q: Sometimes the emergency department where I work gets so busy we have to evaluate patients before they can be placed in a room. I have seen nurses perform examinations on patients on stretchers in hallways where staff and other patients can easily overhear them discussing their medical history and treatment options. Would this be considered a HIPAA violation?

A: Not necessarily. Covered entities are required to limit what would be classified as incidental disclosures of PHI. If the emergency department makes efforts to limit incidental disclosures, it would not be a violation of HIPAA. Nurses should be counseled to speak in low tones where feasible to limit the amount of PHI that could be overheard.

If an emergency department evaluates the risk of incidental disclosure and, because of the location or layout of the emergency department, determines that the incidental disclosure can’t be prevented, it’s best to document that fact. As an example, in the early days of HIPAA, OCR indicated that hospitals didn’t need to construct walls in shared hospital rooms. Curtains and low voices would be considered sufficient to limit incidental disclosures.

Editor’s note: This question was answered by Chris Apgar, CISSP, president of Apgar & Associates, LLC, in Portland, Oregon. He is also a BOH editorial advisory board member. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions. Opinions expressed are those of the author and do not represent HCPro or ACDIS. Email your HIPAA questions to Associate Editor Heidi Samuelson at hsamuelson@hcpro.com.