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Medical Liability Letter

Issue No. 3 -- April 1996






Know Your Reporting Requirements:
Michigan Statutes Imposing Mandatory Disclosures

All employees who work in a hospital are presumably aware that medical information and medical records are subject to the legal protection of physician-patient confidentiality. They may not know that there are certain factual situations in which the law requires that information be disclosed, despite the general rule of confidentiality.

Three Michigan statutes impose a duty upon a hospital and/or a physician to disclose information to outside entities, depending upon the circumstances of a given patient's presentation. In addition, there are a number of disclosure requirements related to the human immunodeficiency virus (HIV).

Violent injuries

MCL 750.411; MSA 28.643 imposes a duty of disclosure upon a hospital when any individual presents suffering from any wound or other injury "inflicted by means of a knife, gun, pistol or other deadly weapon, or by other means of violence". The hospital is required to immediately contact, both by telephone and in writing, the Chief of Police or other head of the police force of the village or city in which the hospital is located, or the sheriff of the county, if the hospital is located outside the incorporated limits of a village or city. The report must state the name and residence of the injured person, if known, his whereabouts, and the character and extent of his injuries.

A physician who treats such a patient is required to make a similar report to the appropriate law enforcement officers. The failure to comply with this disclosure requirement is a misdemeanor.

Child abuse or neglect

The Michigan Child Protection Law [MCL 722.621; MSA 25.248(1) et. seq.] imposes notification requirements on physicians in child abuse or neglect cases. Child abuse as defined by the Act means:

  1. harm or threatened harm to a child's health or welfare by a parent, legal guardian or other person responsible for the child's health or welfare, or by a teacher or teacher's aide, that occurs through non-accidental physical or mental injuries;
  2. sexual abuse; or
  3. sexual exploitation or maltreatment.

The Act defines child neglect as:

  1. harm or threatened harm to a child's health or welfare by negligent treatment, including the failure to provide adequate food, clothing, shelter or medical care;
  2. placing a child at an unreasonable risk to the child's health or welfare by the failure of the parent or guardian to intervene to eliminate that risk when the parent or guardian is able to do and has, or should have, knowledge of the risk.

The statute specifically provides that pregnancy of a child under 12 or the presence of venereal disease in a child under 12 (except in the case of neonates) is reasonable cause to suspect that child abuse or neglect has occurred.

A physician who has reasonable cause to suspect child abuse or neglect is required to immediately make an oral report of the suspected child abuse or neglect (by telephone or otherwise) to the Department of Social Services. Further, within 72 hours after making the oral report, the physician or someone designated to act for him must file a written report containing the name of the child and a description of the abuse or neglect. The report must provide, if possible, the names and address of the child's parents or guardian, the person with whom the child resides, the child's age, and any other information available to the reporting person that might establish the cause of the abuse or neglect and the manner in which the abuse or neglect occurred.

A person acting in good faith who makes a report is immune from civil or criminal liability that might be otherwise incurred by the disclosure.

Mental health

MCL 330.1946; MSA 14.800(946) imposes a duty on a mental health practitioner (psychiatrist, psychologist, licensed professional counselor, marriage and family therapist, or psychiatric social worker) when a patient to whom treatment is being provided communicates a threat of physical violence against another person ("a readily identifiable third person") and the patient has the apparent intent and ability to carry out that threat in the foreseeable future. Specifically, the mental health practitioner must do one or more of the following in a timely manner:

  1. Hospitalize the patient or initiate proceedings to hospitalize the patient;
  2. Make a reasonable attempt to communicate the threat to the third person and communicate the threat to the local police department or county sheriff where the third person resides or for the area where the patient resides, or the state police;
  3. If the mental health practitioner has reason to believe that the third person who is threatened is a minor or is incompetent by other than age, the mental health practitioner must take the steps outlined in Paragraph B and communicate the threat to the Department of Social Services in the county where the minor resides and advise the third person's custodial parent, non-custodial parent, legal guardian or whoever is appropriate in the best interest of the third person.

If the patient is treated through team treatment in a hospital, and the individual in charge of the person's treatment decides to make the notification, the hospital is required to designate an individual to communicate the threat to the necessary individuals.

HIV-related disclosures

The Michigan Public Health Code has created a number of mandatory disclosure requirements regarding AIDS and the human immunodeficiency virus (HIV). These include:

Section 5114 [MCL 333.5114; MSA 14.15(5114)] provides that a person or governmental entity which obtains from a subject a test result that indicates the subject is "HIV infected" must, within 7 days after obtaining the test result, file a disclosure with the Michigan Department of Public Health on a form previously provided by the Department. Further, the person or governmental entity within the same 7 day period must provide a report to the local health department on a form previously provided by the Michigan Public Health Department. Section 5114(2). (We interpret the sloppy use of the term "HIV infected", used consistently in these sections, to include anyone who tests positive for exposure to HIV.) An individual who undergoes testing in a private physician's office or in the office of a physician employed by or under contract to a health maintenance organization may request the above-referenced report made by the physician not include the name, address and telephone number of the test subject.

A person or governmental entity which administers a test for HIV or an antibody to HIV to an individual must refer that individual to the local health department for assistance with partner notification if the test results indicate the individual is "HIV infected" and the person or governmental entity which administered the test determines that the individual needs assistance with partner notification. Section 5114(a). The local health department will determine what information is necessary to carry out partner notification. The information may include, but is not limited to, the name, address and telephone number of the individual test subject.

If either applicant for a marriage license undergoes a test for HIV and the results indicate that an applicant is "HIV infected", the practitioner administering the test must inform both applicants of the test results and must counsel both applicants regarding modes of HIV transmission, the potential for HIV transmission to a fetus, and protective measures. Section 5119 [MCL 333.5119; MSA 14.15(5119)].

Section 5129 of the Public Health Code [MCL 333.5129; MSA 14.15(5129)] deals with individuals arrested and charged with prostitution, solicitation, gross indecency, criminal sexual conduct, and intravenous drug use. Individuals arrested and charged with violating state laws or local ordinances dealing with those offenses, upon order of the court, may be examined and tested to determine whether they have venereal disease, Hepatitis B infection, HIV or AIDS. Examination or test results positive for those diseases must be reported to the defendant, the State Department of Public Health, and the local Health Department for partner notification.

Section 5129 provides that after a defendant is examined and tested, the person or agency conducting the examination must immediately provide the test results to any victim with whom the defendant engaged in sexual penetration or sexual contact or who was exposed to bodily fluid during the course of a crime, and must refer the victim for appropriate counseling.

Section 5131 of the Public Health Code [MCL 333.5131; MSA 14.15 (5131)] provides for the general confidentiality provisions of records pertaining to HIV infection or AIDS and provides a number of exceptions to the confidentiality provisions.

Persons who disclose information under the exceptions to the confidentiality provisions must not include information which identifies the person to whom the information pertains unless the identifying information is determined by the person making a disclosure to be reasonably necessary to prevent a foreseeable risk of transmission. (See Section 5131(7) of the Public Health Code -- this restriction does not apply to the information disclosed pursuant to written authorization, the child protection law, or to children placed within a child care organization.)

The exceptions to the general confidentiality provisions are found at Section 5131(5) of the Public Health Code. Under this section, information may be disclosed to the State Department of Public Health, a local health department, or other health care provider to protect the health of the infected individual, to prevent further transmission of HIV, or to diagnose and care for a patient.

Information pertaining to an individual who is "HIV infected" or has been diagnosed as having AIDS may be disclosed by a physician or local health department to an individual who is known by the physician or local health officer to be a contact of the infected individual, if the physician or local health officer determines that the disclosure of information is necessary to prevent a reasonably foreseeable risk of further transmission of HIV. The physician or local health department officer is under an affirmative duty to make this disclosure. He may discharge the duty by referring the infected or diagnosed individual to the appropriate local health department for assistance with partner notification. He must include as part of the referral the name, address and telephone number of each individual known by the physician or local health officer to be a contact of the infected individual.

Section 5131 also provides that information about an individual who is "HIV infected" or diagnosed as having AIDS may be disclosed by the authorized representative of the State Department of Public Health or by a local health officer to an employee of the school district, if it is determined that the disclosure is necessary to prevent a reasonable foreseeable risk of transmission of HIV to pupils in the school district. Further information may be disclosed in conjunction with the reporting requirements under the child protection law and regarding minors who are placed with child care organizations.

Pursuant to Section 20191 of the Public Health Code [MCL 333.20191; MSA 14.15 (20191)] if an emergency patient is assisted or transported to a health facility by persons who may be potentially exposed and who have public safety responsibilities (including police officer, fire fighter, medical first responder, emergency medical technician, emergency medical technician specialist or paramedic) and if the emergency patient, as part of the treatment rendered by the health facility, is tested for the presence of an infectious agent and the results are positive, the health care facility has certain obligations with regard to notification.

Specifically, if the test results are positive for an infectious agent and

(1) a potentially exposed person is a police officer, fire fighter, or other individual licensed under Section 20950 of the Public Health Code or,

(2) any other person demonstrates in writing to the health care facility that he or she was exposed to blood, bloody fluids or airborne agents of the emergency patient or participated in providing treatment to the emergency patient or transportation of the emergency patient to the health facility,

then the health care facility is required to notify the person (the potentially exposed individual) that he or she may have been exposed to an infectious agent, on a form provided by the State Department of Public Health.

If the infectious agent is HIV, the health care facility must not reveal that the infectious agent is HIV unless it has received a written request for notification from the potentially exposed individual. The notification, a form provided by the State Department of Public Health, must inform the individual of appropriate infection control procedures to be taken and the approximate date of the potential exposure.

The notification required by Section 20191 of the Public Health Code must occur within two days after (1) the test results are obtained by the health care facility or (2) receipt of the written request for disclosure.

If the potentially exposed individual provides his name to the health care facility or if the health care facility has a procedure that allows it to determine the individual's name and address, the health care facility must notify the individual directly at that address. If the potentially exposed individual is a police officer, fire fighter, or other individual licensed under Section 20950, and if the health facility does not have the name of the potentially exposed individual, the health care facility must notify the appropriate police department, fire department, or life support agency that employs or dispatches the individual. If the health care facility is unable to determine the employer of the individual, it must notify the medical control authority or chief elected official of the governmental unit that has jurisdiction over the transporting vehicle. The medical control authority or chief elected official must notify the potentially exposed individual or if unable to notify that individual, must document in writing the notification efforts and reasons for inability to make the notification.

The notice required under this section must not contain information which would identify the emergency patient who tested positive for an infectious agent.

© 1996-99 Garan, Lucow, Miller & Seward, P.C.
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