Doctor-Patient Confidentiality
| Author | Jeffrey Wilson |
| Pages | 849-855 |
Page 849
The concept of "doctor-patient confidentiality" derives from English common law and is codified in many states' statutes. It is based on ethics, not law, and goes at least as far back as the Roman Hippocratic Oath taken by physicians. It is different from "doctor-patient privilege," which is a legal concept. Both, however, are called upon in legal matters to establish the extent by which ethical duties of confidentiality apply to legal privilege. Legal privilege involves the right to withhold evidence from discovery and/or the right to refrain from disclosing or divulging information gained within the context of a "special relationship." Special relationships include those between doctors and patients, attorneys and clients, priests and confessors or confiders, guardians and their wards, etc.
The Oath of Hippocrates, traditionally sworn to by newly licensed physicians, includes the promise that "Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret." The laws of Hippocrates further provide, "Those things which are sacred, are to be imparted only to sacred persons; and it is not lawful to impart them to the profane until they have been initiated into the mysteries of the science."
Doctor-patient confidentiality stems from the special relationship created when a prospective patient seeks the advice, care, and/or treatment of a physician. It is based upon the general principle that individuals seeking medical help or advice should not be hindered or inhibited by fear that their medical concerns or conditions will be disclosed to others. Patients entrust personal knowledge of themselves to their physicians, which creates an uneven relationship in that the vulnerability is one-sided. There is generally an expectation that physicians will hold that special knowledge in confidence and use it exclusively for the benefit of the patient.
The professional duty of confidentiality covers not only what patients may reveal to doctors, but also what doctors may independently conclude or form an opinion about, based on their examination or assessment of patients. Confidentiality covers all medical records (including x-rays, lab-reports, etc.) as well as communications between patient and doctor, and it generally includes communications be-
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tween the patient and other professional staff working with the doctor.
The duty of confidentiality continues even after patients stop seeing or being treated by their doctors. Once doctors are under a duty of confidentiality, they cannot divulge any medical information about their patients to third persons without patient consent. There are, however, exceptions to this rule.
There is no duty of confidentiality owed unless a bona-fide doctor-patient relationship exists or existed
The scope of the duty of doctor-patient confidentiality, as well as the existence of a doctor-patient legal privilege, varies from state to state. No federal law governs doctor-patient confidentiality or privilege
Generally, what is confidential is information that is learned or gained by a doctor, during or as a result of the doctor's communications with examination of you, or medical assessment of the patient
The duty of confidentiality continues even after the patient stops seeing or being treated by the doctor
The duty of confidentiality is not absolute. Doctors may divulge or disclose personal information, against the patient's will, under very limited circumstances
There must be a bona fide "doctor-patient relationship" between individuals and a physician before any duty of confidentiality is created. Generally speaking, individuals must voluntarily seek advice or treatment from the doctor, and have an expectation that the communication will be held in confidence. This expectation of confidentiality does not need to be expressed. It is implied from the circumstances.
If individuals meet a doctor at a party, and in the course of "small-talk"conversation, they ask the doctor for an opinion regarding a medical question that relates to them, the doctor's advice would most likely not be considered confidential, nor would the doctor be considered "the individuals doctor." Likewise, if individuals send an e-mail to an "Ask the Doctor" website on the Internet, the communication would not be considered confidential, nor would the person who responded to the e-mail be considered he sender's doctor. No doctor-patient relationship was established, and no duty is owed.
If individuals are examined by a physician at the request of a third party (such as an insurance company or their employer), no matter how thorough or extensive the examination, or how friendly the doctor, there is generally no physician-patient relationship and no duty of confidentiality is owed to the patients. This is because they did not seek the physician's advice or treatment, and the relationship is at "arm's-length."
In many states, the privilege is limited to professional relationships between licensed doctors of medicine and their patients. Other states extend the privilege to chiropractors, psychologists, therapists, etc.
Once a bona-fide doctor-patient relationship is established, the duty of confidentiality"attaches," and in many states, the doctor can invoke a legal privilege, on the patient's behalf, when asked to disclose or divulge information the doctor may have or know about the patient.
Federal Rule of Evidence (FRE) 501 provides that any permissible privilege "shall be governed by the principles of common law" as interpreted by federal courts. However, in civil actions governed by state law, the privilege of a witness is also determined by the laws of that state. Most states recognize some form of doctor-patient privilege by express law (statute), but over time, there have been many exceptions that have chipped away the use or scope of the privilege.
In recent years, many courts have held that doctors also owe duties to protect non-patients who may be harmed by patients. For example, without a patient's permission or knowledge, doctors may warn others or the police if the patient is mentally unstable, potentially violent, or has threatened a specific person. In some states, the duty to report or warn others "trumps" the right to confidentiality or privileged communication with a doctor. Courts will...
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