The Railroader’s Right to Medical Privacy: It’s “Doctor-Patient Privilege, not Railroad-Doctor Privilege

As Americans, we enjoy many, many rights and privileges under our Constitution and laws. One of these rights has to do with medical privacy. The issue of medical privacy goes beyond just protecting against unauthorized disclosure of medical records; it goes to protecting an injured railroader against interference with or manipulation of his or her medical treatment.

It happens all the time, this thing of meddling with and manipulating medical treatment. A railroader hurt on the job is taken from the scene to a hospital emergency room or medical clinic. Count on it: he either will be accompanied to the hospital or clinic by a railroad official, or one or more will meet him there. There may well be a claim agent in the mix. Now the medical privacy issue arises, as all too often a railroad official will try to accompany the injured man into the treatment room or try to speak with the doctor after the examination. All too often, they succeed. What do you suppose the motivations of the official are to want to be in the treatment room or "chat" with the doctor? Experience gives us the answer to that question.

Again and again, we at the Hubbell Law Firm hear stories from injured railroaders of officials following them into the treatment room and chiming in to tell the doctor what "really happened" as the doctor attempts to take a history of how the worker was hurt. We hear further of officials while still in the treatment room or out by the nurses’ station or wherever, discouraging the doctor from giving any prescriptions, even for pain medications, and encouraging the doctor to return the employee to work with the assurance that the railroad will watch out for the worker and have him or her take it easy for awhile. Or the official will ask the doctor to release the injured worker to full duty, understating to the doctor the physical requirements of the job and leaving out certain key information the doctor should have about the job in making his or her medical decision on the patient's behalf.

We have heard from railroaders who have had egregious interference by railroad officials with their treatment. We represented one young switchman who fell from a moving railroad car through the railroad's negligence. He was lucky–all he sustained were fractures of the two bones in his forearm a little way up from the wrist. After x-raying the forearm and aligning the broken bones, the doctor applied a plaster cast from just below the elbow down to the wrist. The official stopped the doctor as he left the casting room with the injured worker. He told the doctor the man would not be able to come onto the property with his arm in a cast like that, and asked if could cut the cast down some. The doctor complied. Still too much cast, the doctor was told. More of the cast was cut off. Amazingly, after a couple more cut-downs of the cast, the injured worker left the emergency room with nothing more than an elastic wrap immobilizing the broken bones in his forearm. The luck of the young man ran out, as the broken bones started to mend with an obvious rotation deformity at the fracture sites, so the hand did not align with the elbow. It was necessary for him to have surgery to "re-fracture" the bones and set them. His forearm was never the same, and what should have been a minor injury, with 6 to 8 weeks lost time and no permanent disability, ended with a young man having a permanently bad upper limb, thanks to a railroad official who thought more of the railroad's precious safety record than the well-being of the young man. Such is an outrage that happens far too often.

But the meddling and manipulation doesn't stop with the initial treatment at the hospital or medical clinic. Not at all. Later–days, weeks or months–the railroad through its "case manager," who may be a nurse, or perhaps through a "medical officer," who may be a physician, will likely contact the injured employee's doctors directly, introducing themselves matter-of-factly, as Dr. or Nurse So-and-so, to discuss with great interest and concern the "needs" of the patient, his care, his treatment. Unfortunately, the discussion will involve more the "wants" of the railroad than the "needs" of the railroader. The nurse or doctor may well plant the suggestion that the worker's condition pre-existed the railroad injury, since the railroad would like to shift the blame to someone or something else in the worker’s past. Or the doctor or nurse may encourage the treating doctor to return the injured worker to duty before he or she is actually ready, offering a description of the job to which the worker will be returning that somehow fails to include the heavy and hazardous aspects of the work. Or the railroad's nurse or doctor may indicate that the railroad will place the worker on "light duty," forgetting somehow to inform the treating doctor that the railroad is not obligated to provide light duty and that in many instances, when light duty is provided, it will only last for weeks, or at most, months.

The Right to Medical Privacy

Railroaders need to know this: under the law, the railroader's right to medical privacy is absolute. No railroad official has the right to be in the treatment room, speak with the doctor or any healthcare provider, or obtain any of the medical records, without specific permission, whether that official be a foreman or supervisor, a claim agent or any official at any level all the way up to and including the president of the railroad. Under HIPAA (Health Insurance Portability and Access Act) and FELA (the Federal Employers' Liability Act), the railroader alone has the rights to his or her medical information, the railroad has no rights.

One caveat to the railroader's privacy rights: when a railroader is injured on the job and brings an injury claim, the railroad will likely be entitled to obtain medical records on the injured railroader. Still, the railroader preserves certain privacy rights, and the railroad will have to meet rather stringent requirements set by law to obtain the medical records and will face significant restrictions on the scope of the information the railroader has to provide access to. In other words, the railroad may well not be able to get information from all providers of service for the railroader's entire life, as they might like. Also, while the treating doctor may have to give a sworn deposition later should a lawsuit be filed, the courts will even then deny the railroad that one-on-one "chat" with the doctor that railroad officials are trying to have by butting into the treatment room or stopping the doctor to chat out in the hall.

How the Rights to Medical Privacy Go Wrong

If a railroader has rights to medical privacy, why would any doctor or healthcare provider even consider talking with a railroad official or giving up medical information? The fact is that doctors give up medical information unwittingly, because most doctors don't realize that the law covering railroad workers is different from the laws covering most other types of workers they treat. Under most state workers' compensation laws, employers are given an active role overseeing the medical care of the injured worker, even to the point of approving or denying tests and procedures, and thus, are given the right to communicate openly and freely with treating doctors. Under FELA, the railroad has no such right. Most doctors are just not aware of that difference.

Doctors, and the people working for them, are used to dealing with workers' compensation laws and regulations. Having no experience with FELA, it seems not only natural, but necessary to communicate and cooperate with the employer. They just don't know that they're not supposed to be giving up medical information to the employer if their patient is a railroader. With the work comp mentality solidly in place, along with the belief by the doctor and staff that the railroader is a work comp patient (work comp is often stamped at the top of the record or written as part of the record), it's easy for the case manager to get the doctor's staff to furnish medical records that are supposedly needed to process medical bills, and go ahead with putting the case manager's call through to the doctor to ask about the progress of the patient and what the doctor's plans are for future treatment and release of the injured railroader to return to work. The case manager has no right to do this without the written consent of the patient.

Protecting Your Rights to Medical Privacy

You are the front line of protecting your rights to medical privacy. It is important for you to be appropriately impressed with the importance of protecting those rights, as intrusion into your medical records and medical treatment can impact not only any claim that you might have, but the quality and adequacy of your medical treatment. Think of this: do you really want a railroad official, or a case manager who answers to the railroad, swaying what your doctor does in treating your injuries or releasing you to work following your injury? The obvious answer to those questions is "NO." Only you, or someone who has your best interests at heart, should have a role in your medical treatment; no one else. To make sure this is the situation in your case, you must protect your rights to medical privacy. How? A few suggestions:

1. If a railroad official asks to go into the treatment room with you, respectfully and politely refuse. Do not yield. Remember, the law is on your side. If the official persists, contact your union representative.
   
2. Do not sign a medical authorization unless and until you talk with your union representative or an attorney who has experience and expertise with FELA cases. Many personal injury report forms include a section which, when signed, serves as a medical information release authorization. Do not sign that section of the form without first checking with your union representative to be sure you are absolutely required to do so by union agreement with the carrier. If you are not required to sign that section of the personal injury report form, don't.
   
3. Understand your rights under FELA in comparison to state workers’ compensation laws. Understand that your medical information is protected and that the railroad does not have any right to your medical information, whether by obtaining your medical records or communicating with your healthcare providers, without your permission. And don't give that permission until you have spoken with your union representative and an attorney who knows FELA. Keep in mind that many lawyers are like doctors, their experience is with workers' compensation laws and they know nothing of FELA. Make sure you get your advice from an attorney who knows FELA.
   
4. Make certain your doctor understands that you are covered by FELA, not state workers’ compensation laws, and that he or she further understands what your rights to medical privacy under FELA are. The doctor needs to understand that you do not want him or her talking to the railroad or furnishing your records to the railroad without your permission.
   
5. Carry with you a written explanation of your rights to medical privacy. The Hubbell Law Firm has these rights on cards made of credit card plastic in credit card size. These cards are available upon request. Or in the alternative, a letter with your rights to privacy is available on our website and may be easily downloaded and printed.

Following these simple suggestions will help you protect your medical privacy rights, which will keep your medical information and medical decisions in your hands and under your control where they belong. Unfortunately, while it's easy to say, “follow these simple suggestions,” it's not easy to do. Few of us are able to think clearly after getting hurt on the job. With the pain, the stress of trying to cope with the traumatic event, the fears, the apprehensions, and perhaps medications for pain, the injured worker's mental processes are overwhelmed and it is difficult to think straight. Considering that, it is best for injured workers to contact their union representative just as soon as possible for a quick refresher on what to do and what not to do. Another call should be to an attorney with experience and expertise in handling railroad injury cases for advice from the legal standpoint on what to do and what not to do, what to say and what not to say. Your rights cannot be taken away, but unwary employees far too often give them up by not knowing their rights or standing up for them.

The attorneys of the Hubbell Law Firm and many other law firms designated by unions and frequent handlers of FELA cases will advise injured railroad workers and their families of their medical privacy and FELA rights without charge or obligation. Give us a call, the Hubbell Law Firm.

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