C. Elements Defined

LibraryElements of Civil Causes of Action (SCBar) (2021 Ed.)

C. Elements Defined

1. A Confidential Relationship

The plaintiff must show that a doctor/patient relationship existed between him or her and the defendant.19 That relationship has been described as a "consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient."20 South Carolina courts have given some definition to that relationship within the context of medical malpractice actions.21

What is the status of the confidential relationship when a patient sues a physician? An Illinois court said that when patients file suit, they do not nullify confidentiality, "they do not implicitly consent to their doctors revealing medical confidences to parties beyond the normal bounds of discovery, and they do not authorize doctors to divulge their information in ex parte communications with their legal adversaries. That is, the confidential doctor-patient relationship endures, even where the patient initiates a lawsuit and assents to disclosure of pertinent information through traditional methods of discovery."22

There are other potential confidential relationships.23 The general principles that should apply to determine whether a relationship is confidential are whether it is of a "public nature" beyond mere friendship, family, or confessor-confidant and whether it is customarily understood to carry an obligation of confidence, not just a relationship in which an individual would reasonably believe that information should be confidential.24

Hedgepath,25 used some language that hinted doctor/patient may not be the only confidential relationship subject to a breach of confidentiality action, although the holding in McCormick clearly limited the tort to that relationship.26 Interestingly, another relationship — social worker/client — was actually at issue in the lower court in McCormick; however, only the physician's appeal was before the appellate court.27 There is a statute, noted in McCormick, addressing mental health patients that may be a basis of liability for providers."28 A "provider" is a person licensed under specified statutes "... who enters into a relationship with a patient to provide diagnosis, counseling, or treatment of a mental illness or emotional condition ...".29 Providers include: psychologists;30 licensed professional counselors, marriage and family therapists, and psycho-educational specialists;31 licensed social workers; and, clinical nurse specialists.32 The statute provides that, unless permitted or required by law, a provider may not knowingly reveal a confidence33 of a patient.34 The statute sets forth circumstances in which a provider may, or must, reveal a confidence.35 A provider who releases a confidence with the patient's written authorization or pursuant to the statutory provisions is not liable to the patient for release to the person authorized to receive it. If, however, a confidence is released in violation of the statute and the release is intentional, wilful, or committed with gross negligence, the patient has a cause of action for damages.36

One relationship that the South Carolina Supreme Court has definitively said does not establish a duty of confidentiality is that of pharmacist and customer.37

2. Disclosure of Confidential Information

Without a disclosure, the action fails.38 South Carolina courts have not specifically stated what would constitute "confidential information" for the purposes of an action for breach of confidentiality.39 In Hedgepath the court merely described the information as "not flattering." In McCormick the physician prepared a "To Whom It May Concern" letter diagnosing the plaintiff as suffering from "major depression and alcoholism, acute and chronic'" and stating the plaintiff's children had experienced school difficulties because of family discord caused by the plaintiff's drinking. The doctor also said that, in his medical opinion, the plaintiff was "a danger to herself and to her family with her substance abuse and major depressive symptoms," and required hospitalization.

It is unclear whether the disclosure must be intentional, or may be merely inadvertent.40 One Ohio federal court concluded that doctors "... may be legally culpable for ... intentional, unauthorized divulgence of confidences."41Hedgepath nowhere uses the words intent, intentional or wilful. McCormick refers to intent only in its discussion of the invasion of privacy tort. While the court there said invasion of privacy requires a defendant to "intentionally reveal facts which are of no legitimate public interest," the court did not explicitly state that the intent requirement distinguishes invasion of privacy from breach of confidentiality. A Pennsylvania court has made that distinction and strongly inveighed against any intent requirement.42

Another unresolved question in South Carolina is the parameters of confidential information. Commentators seem to agree that for information to be confidential it must be learned in a confidential relationship,43 while it appears that essentially any information learned in a confidential relationship is considered confidential.44

3. Disclosure Was to a Third Party

The third element is one that distinguishes breach of confidentiality from invasion of privacy. The latter requires "publicizing" private matters. Publicity means the information is revealed to more than one or a small number of persons.45 A publicity requirement would preclude many breach of confidentiality cases. However, a confidential relationship may be breached if an unauthorized disclosure is made to only one person, since great injury could result from disclosure to a single person.46 The McCormick court said the one person must be one "not a party to the confidence."47 Otherwise, disclosure to anyone,48 including, the plaintiff's spouse,49 will meet the third element of the tort. One exception may be a disclosure to another physician, or other medical personnel.50 The Ohio Supreme Court held that disclosure to the defendant's attorney was a breach of confidence.51 The court rejected the contentions that the attorney was the defendant's "alter ego" and that the attorney was bound by client confidentiality. The attorney-client relationship was, noted the court, between the defendant and the attorney, not the patient and the attorney.52

4. Absence of Consent or Privilege

Consent or privilege would be an affirmative defense, but by defining the tort to include "absence of a compelling public interest or other justification for the disclosure" the McCormick court made it the responsibility of the plaintiff show lack of consent or privilege.

The parameters of consent to disclosure have yet to be explored;53 however, consent is also a defense to invasion of privacy where it may be found when the evidence shows a "voluntary agreement to do something proposed by another and the party consenting possesses sufficient information and ability to make an intelligent choice."54 The legitimacy of any claimed consent may be subject to challenge based on the patient's condition,55 or because it is insufficiently broad to cover the disclosure.56

Compelling public interest57 — or other justification58 — and privilege would include compulsion by subpoena or other legal process,59 statutorily mandated disclosure,60 or any circumstance in which public policy requires that disclosure is reasonably necessary to protect the interest of the patient or others.

The fact that records have been subpoenaed does not necessarily mean the fourth element cannot be met. In a case before the Connecticut Supreme Court, the defendant medical practice received a subpoena instructing the custodian of its records to appear in court with the plaintiff's medical records. The defendant did not notify the plaintiff of the subpoena, file a motion to quash it, or appear in court. Instead the defendant mailed a copy of the plaintiff's medical file to the court. The court said that there was an issue of material fact regarding whether the defendant violated the duty of confidentiality by the manner in which it disclosed the medical records in response to the subpoena.61

McCormick listed statutes pursuant to which the public interest demands disclosure of information gained by physicians in their professional capacity. This includes a statute requiring notification of HIV infection or AIDS.62

5. Damages63

McCormick did not explore the issue of injury, but one South Carolina commentary has said "... the patient has a right to avoid any injury resulting from the disclosure. Possible injuries include reputational damage as well as more tangible harm."64 The South Carolina Supreme Court has observed in dicta that "... it is irrelevant in a breach of confidentiality claim whether the disclosure of the information would bring shame to a person of ordinary sensibilities."65


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Notes:

[19]Stephens v. United States, 2016 U.S. Dist. LEXIS 182443 (D.S.C. December 9, 2016) (where plaintiff alleged that his private medical records were erroneously disclosed by prison's health services administrator—whom he did not allege was a physician who treated him — he failed to plead facts that would state plausible claim for breach of physician's duty of confidentiality); Gallipeau v. Correct Care Solutions, ___ F. Supp,2d ___, 2011 U.S. Dist. LEXIS 116207 (D.S.C. August 5, 2011) (South Carolina courts have recognized action for breach of confidentiality, but only against physician where there is absence of compelling public interest or other justification for disclosure). Consider, Doe v. Portland Health Centers, Inc., 99 Ore. App. 423, 782 P.2d 446 (1989), app. dis., 310 Ore. 476, 799 P.2d 150 (1990) where the plaintiff alleged the defendant disclosed to a third person that her daughter had been hospitalized after a suicide attempt. The court discussed the possibility of a doctor/family confidential relationship, but said it did...

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