The strict Ohio Supreme Court decision in Biddle: third party law firm held liable for inducing disclosure of medical information.

AuthorRathbone, Kimberly
  1. INTRODUCTION

    Cheryl Biddle had not paid her medical bills. (2) Nor had she consented to have her patient registration form released to anyone outside the hospital. (3) What she did not know was that the hospital agreed to send all patient registration forms to a law firm. (4) In turn, the firm attempted to collect any unpaid bills from the Social Security Administration if they determined that the patient was eligible (5) The result: an unauthorized disclosure by the hospital of confidential medical information, induced by the law firm. (6)

    Victims of unauthorized disclosures of medical information have enjoyed strict protection by state and federal courts. This is because secrecy is considered a sacred requirement in order to foster honesty and cooperation between a physician and patient. (7) Confidentiality is considered such a vital ingredient to the physician-patient relationship by the medical profession that it is addressed in the oath, which is a prerequisite to admittance into the field of medicine: "All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal." (8) The assurance of secrecy is, thus, ingrained in public policy and medical ethics and not in the "archaic whims of the common law." (9) The importance of this public policy and the confidentiality between physician and patient has increased the growing concern in Ohio and throughout the nation regarding the unauthorized release of medical information to third parties for approximately the last thirty years. (10)

    Recently, the state of Ohio has, once again, established itself as a leader in the development of the law concerning unauthorized disclosures of medical information. (11) Ohio was first instrumental in developing this area of law when the physician-patient privilege was initially recognized. (12) Although courts have been cognizant of the breach of confidentiality tort, few courts throughout the United States have addressed the inducement aspect of the breach of patient confidentiality by a third party. (13) But now, in the boldest move since Hammonds v. Aetna Casualty & Surety Co., (14) the inducement of an unauthorized disclosure of medical information has taken a new twist. Ohio is the first state to hold that a law firm can be considered a third party and held liable for inducing a disclosure. (15) In Biddle v. Warren General Hospital, the Ohio Supreme Court held that a law firm who is employed by the hospital is not considered an agent of the hospital and does not have the same duty of confidentiality to the patient because the law firm's duty is to the hospital. (16) Therefore, a law firm is a third party and can be held liable for inducing a physician or hospital to make an unauthorized disclosure of medical information. (17)

    Although some may argue that Biddle is the beginning of the end for the physician-patient privilege and attorney-client privilege, this is not the case. This Article will explore various ways to avoid the situation encountered in Biddle while keeping the privilege intact. The development of the breach of confidentiality tort, both throughout the nation and in Ohio, is examined in Part II. In Part III, the closely related inducing a breach of confidentiality by a third party tort is analyzed nationally and in Ohio. Part IV will provide an in-depth look at Biddle's (18) facts, reasoning, and failed arguments, as well as possible solutions for hospitals, physicians, and law firms who may encounter this situation today and in the future.

  2. BREACH OF CONFIDENTIALITY TORT

    1. National Development

      1. Theories of Liability

        Although the physician-patient privilege has existed since 1825, (19) courts did not thoroughly examine the unauthorized disclosure of medical information until the latter half of the twentieth century. State courts have altered the treatment of unauthorized disclosures, through an evolution of various theories of liability, and sometimes used multiple theories of recovery in their analyses. (20) Although the other theories of liability are still utilized, most states eventually recognized the breach of confidentiality as its own tort. (21)

        One of the first theories of liability for unauthorized disclosures to be widely used is invasion of privacy. (22) Plaintiffs often brought actions for invasion of privacy when the focus of their case was more on the nature of the injury instead of the fiduciary relationship. (23) Many courts moved further away from the invasion of privacy tort because the unauthorized disclosures were difficult to place into one specific legal category of privacy law. (24) Also, determining who should be legally responsible for protecting a patient's interests was also highly debated, because there is no limit as to who can be held liable for a disclosure. (25) Unlike the tort of the unauthorized disclosure of confidential information, no higher duty is needed in order to find liability for invasion of privacy. (26) This difference is explained in Humphers v. First Interstate Bank of Oregon, where a physician revealed the identity of the birth mother to a daughter who had been given up for adoption. (27) The court held that the physician was liable for failing to keep a confidence under the breach of confidentiality. (28) Despite the fact that the issue was a privacy interest, the physician was not liable because of an obligation under a general duty of people at large not to invade one another's privacy by prying into personal facts. (29) Other requirements limit a finding of invasion of privacy but do not limit the tort of unauthorized disclosures; (30) specifically, the information that is disclosed must be released to the public at large and be "highly offensive," whereas the tort of unauthorized disclosures can arise regardless of the degree of offensiveness. (31) Thus, the invasion of privacy theory is less inclusive than the breach of confidentiality theory. (32)

        A second theory on which courts base liability for disclosures is breach of implied contract. Courts who use the breach of implied contract theory focus more on the conduct of the parties involved instead of their relationship to each other. (33) MacDonald v. Clinger considered this focus in a case regarding a psychiatrist who disclosed "intimate details" about his patient to the patient's wife. (34) The New York court held that a breach of implied contract would be inadequate because only certain economic wrongs could be remedied using contract law. (35) The court stated, "[i]f plaintiff's recovery were limited to an action for breach of contract ... he would generally be limited to economic loss flowing directly from the breach and would thus be precluded from recovering for mental distress, loss of his employment and the deterioration of his marriage." (36) The court was concerned with honoring physical and mental loss that cannot be recovered from a breach of contract. (37) However, the court upheld an action for breach of confidentiality because a duty grew out of the patient's trust and confidence in his psychiatrist and the tort was "easily separable from the mere breach of contract." (38) Therefore, the breach of implied contract theory is inadequate because it does not provide for emotional and physical damages that are common when unauthorized disclosures of medical information occur. (39)

        Although not frequently alleged, a court can base liability on intentional infliction of emotional distress. (40) In order to sustain an action for intentional infliction of emotional distress, the conduct is required to be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (41) The conduct of the disclosing party is often not considered `outrageous' enough for the plaintiff to recover under this theory. (42) This was the case in Andrews v. Bruk when a physician released medical records in his divorce proceedings detailing that his patient had undergone a vasectomy in order to show that the patient and the physician's wife were having an affair. (43) The court held that while the physician's actions were not condoned, they were not at a level that constituted extreme and outrageous conduct. (44) In contrast to the outrageous conduct required by intentional infliction of emotional distress, the breach of confidentiality tort only requires a disclosure, and outrageous or extreme conduct is not necessary. (45)

        An additional theory of liability recognized by some courts is defamation. Courts have limited liability for defamation cases regarding unauthorized disclosures of medical information by requiring a specific injury in order to recover. For example, in Bullion v. Gadaleto, a patient sued his psychologist for breach of confidence when he revealed his patient's sexual indiscretions and other confidences to the patient's wife. (46) The court stated, "[d]efamation is chiefly concerned with injury to a person's reputation, and that specific injury must occur before a cause of action arises." (47) The court ultimately held that the duty of confidentiality was more suitable because it protects every injury that results from a disclosure, instead of only specific injuries that are actionable under defamation. (48)

        Courts have also addressed whether an unauthorized disclosure can fall under the theory of medical malpractice. (49) This reasoning is based on the argument that a disclosure by a medical professional can constitute medical malpractice. In a case from an Arkansas court, a patient brought an action for medical malpractice after the patient's nurse revealed to a third party that the patient either had AIDS or was being tested for it. (50) The court denied liability because the disclosure did not fall under the definition...

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