HIPAA notifications for divorced couple

Here’s the situation:

Divorced couple, minor child. Not the most amicable of situations between them/extended family. One of them is in the hospital, ICU / unconscious. Given that the other parent is the guardian of their child, an immediate (minor) family member of the patient should the hospital share any information with the ex who would otherwise not be entitled to it?

Nope. Not unless the divorced spouse is still on record as emergency contact or power of attorney for healthcare or something like that, or if they have prior permission to share such information.

There’s some amount of professional judgement allowed in speaking to spouses, but ex-spouses? Nope. If anything, I’m going to be even more closemouthed with ex-spouses, because you never know the dynamic, and there’s a good chance it’s not good.

“Mr. Smith, there’s been a problem and we need you to come pick up your son from the hospital as his mother cannot currently care for him,” is pretty safe. “Mr. Smith, your ex-wife just had a stroke and is in the ICU” is absolutely not.

Whoever is in charge of the patient’s care (the parents?) can decide if information can be made available and if so to whom, but it’s their call.

Yea, everyone that’s had HIPAA training knows the answer is “you don’t tell anyone anything unless they’re a covered entity that needs to know, or next of kin with a legal right to the information”. An ex-spouse is neither of those.

Now, whatever that next of kin decides to tell the ex, the media, or some poor schlub walking down the street is up to them, but it is NOT the hospital’s call.

This. A divorced couple is no different from a never-married couple from a privacy law perspective. The only question is whether the patient previously named the spouse as a person to whom PHI can be disclosed, and did not revoke that privilege.

Actually, the question is what the parent, as a proxy for the child, who is the hospitalized parent’s next-of-kin, sort of, should be told.

I think legally, a minor is not next-of-kin, unless the minor has been specifically designated as such (a person who is ill and could become unconscious, and has a 16 1/2 year old might have some kind of power of attorney in place that allows the child to be considered an adult for purposes of discussing the parent’s medical information with the doctor-- just getting information, not making decisions).

If the parent who is not the one who is ill is not sure who is the next of kin, he might ask, because that would be the person to discuss the parent’s situation with the child. If the parent is that out-of-touch with the ex’s family, I don’t think it would be unreasonable to ask the doctor to please have a family member call ASAP so someone can tell the child what is going on.

I understand problems of confidentiality, but I also think it’s much worse for the child to be left in the dark as to the other parent’s condition.

IIRC, you can specify how much information you want disclosed, and it might be prudent for divorcing couples with children to have some kind of “bare bones” information in place. For example, the spouse can know the very general category of condition (“car accident,” but not who was at fault, who was driving, whether intoxication was involved), prognosis as it affects the child (“You can visit mommy in a few days,” vs. "We don’t know when you can visit mommy, but as soon as we know, we will tell you).

It’s a tricky situation for the hospital. Assuming they have no way to contact an approved person who could share necessary information with the patient’s child and caregiver the covered entity would want legal advice immediately. But there shouldn’t be a problem giving the basic information necessary for the care of the child, they can say the patient will not be able to care for the child and some idea of how long that will be without revealing specifics of the patient’s condition. The medical institution will rely on the lack of alternatives and necessary nature of the information. It would be a very unusual situation if the patient was somehow damaged by revealing that information.

Presumably the hospital would just call Child Services anyway, and they’d make the custody determination. The receiving spouse would just have to assume it’s indefinite, and tell the child that they don’t know what’s wrong with the other parent.

You might think that, but after an acrimonious divorce with a litigation happy patient, the hospital better not violate HIPAA, no matter how many small children this patient has.

Oh, I agree! But that’s the family’s role (or whomever is acting as health care decision maker if there’s no family), not the hospital’s. They may offer to help explain things to the child, probably through a social worker, but they cannot make the first move without permission to disclose PHI.

In my state, if you don’t have a designated health care decision maker/POA for healthcare, the chain of command goes: current spouse, eldest child who isn’t a minor, next eldest child who isn’t a minor, parents, eldest sibling. (I think that last one is right. I’ve never had to go that far down the food chain…) If there is no one like that to be found, then the hospital will ask the court to appoint a medical guardian, and that person would be the one responsible for sharing information with the minor child/ren and any non-family members (like a divorced spouse) they see fit.

I think that’s pretty common across state lines, but I’ve learned there are few absolute universals in law.


Healthy parent (H) doesn’t know anything about the condition of Sick parent (S) other than what child ©, an early teen told them. C got some basic info as a text message (!) from step-grandparent (G). G does not wish to communicate directly with H but instead prefers to communicate thru C; however, C does not want to talk about the situation as it is upsetting to them. Therefore H doesn’t know if should they take C to the hospital to see S one last time (is it that grave?) or just pat C on the back & say everything will be alright or something in between. Additionally, H’s lack of info about prognosis/recovery ETA makes it harder to properly care for C; does H buy extra food for C or will S be back home & taking C on their respective custody day(s)?

H pretends that C will be under his roof forever and plans meals accordingly. Because, really, S could walk out of the hospital tomorrow and get hit by a bus. Both H and S should conduct their lives as if they’ll be taking over 100% physical custody tonight, as all parents should.

If C is a generally reasonable kid, I’d leave it up to them whether or not to go see S at the hospital. G should somehow be notified that H is out of the loop, though. That way, if things get dire, G can make arrangements with C to take them to the hospital for good-byes without erroneously thinking that H knows what’s going on and will do it.

Has C been asked to simply show the text message from G to H, with the promise that they don’t need to talk about it? That would help a lot.

All these family interactions are nice, but they aren’t covered by HIPAA. The hospital has an obligation not to release patient data that trumps any “ease of parenting” concerns.