Doctor-Patient Confidentiality Breaches
Rules of doctor-patient confidentiality work much like rules of attorney-client confidentiality. These rules of confidentiality exist, in part, to encourage patients to be frank with their doctors. Since medical issues can be very private, patients might avoid telling doctors certain details if the patient believes that the information could go beyond doctor's ears (or the patient's treatment chart). The confidentiality rules are designed to allay that fear so that the doctor can be armed with all necessary information to provide complete and effective treatment.
Confidentiality Rules Differ
Doctor-patient confidentiality rules vary significantly by state. In most states, the rules apply to relationships involving physicians and psychotherapists. But the rules often do not apply to relationships involving dentists, optometrists, or pharmacists.
Statutes are the primary (but not the only) source of doctor-patient confidentiality rules. Confidentiality protection can also come from implied contractual provisions, the American Medical Association Code of Ethics, or general reasons of public policy recognized by state courts.
To state the rule of confidentiality simply, all communications between a patient and a physician are privileged as long as they occur during the course of a professional relationship, they are intended to be confidential, and no third party is present. Thus, a doctor may not disclose the information to anyone without the patient’s permission.
Since the rules of doctor-patient confidentiality are riddled with exceptions and nuances, this article will discuss some specific situations that a patient might encounter. Then we'll discuss when a patient have a viable right to bring a lawsuit for a breach of confidentiality.
Confidentiality Rules: Privilege and Waiver
The doctor-patient privilege belongs to the patient. The patient has the right to decide whether information is disclosed. The doctor has no discretion as to whether or not information is disclosed, in most cases.
In court, the patient must assert the privilege. If a doctor begins to disclose privileged information in court, the patient (or his or her attorney) must object. Otherwise, the patient waives the privilege.
A patient waives the privilege by initiating a lawsuit in which the patient’s health is at issue, as long as the interactions between the doctor and patient are relevant to the lawsuit. So, a patient nearly always waives doctor-patient privilege by filing a medical malpractice lawsuit against a doctor.
A patient may also waive the privilege by filing a lawsuit for personal injuries. The doctor-patient relationship must be relevant to the medical issues involved in the case in order for the privilege to be waived. A key step in most injury lawsuits involves the plaintiff signing a form in which he or she consents to the release of medical records relevant to the case. So, if a patient complains of back injuries after a car accident, the defendant will usually be able to get records of treatment after the accident. But the defendant will probably not be able to compel the testimony of a psychiatrist who treated the patient three years prior to the accident.
Doctor-patient confidentiality protects not only words, but also observations. A doctor’s observations during an examination of a patient are considered part of the communications that were made between the two individuals, and they are privileged as a result.
A doctor can disclose very basic facts about the examination without breaching the privilege. The doctor can indicate that the patient came in for an examination, the dates of treatment, and to whom the bill was tendered.
Although statements made while a third party is present are usually not privileged, there are exceptions to that rule as well. When the third party is assisting with the provision of the health care or is a close family member of the patient’s, the rules of confidentiality will often prevent disclosure of the information by either the doctor or the third party.
Suing a Doctor for Breaching Confidentiality
If a doctor breaches the confidential relationship by disclosing protected information, the patient may be entitled to bring a lawsuit against the doctor.
The patient may be able to recover compensatory damages, including emotional suffering and damage to reputation resulting from the disclosure. In some states, courts will assume that the patient was damaged by a wrongful disclosure by a doctor (meaning that the patient will not have to actually prove damages). Moreover, some state legislatures have prescribed set penalties involving this kind of wrongful disclosure.
Some states also allow punitive damages for particularly egregious disclosures. For example, some courts have awarded punitive damages when doctors have contacted the parents of a patient seeking an abortion after the patient specifically expressed a desire to keep the abortion confidential.
Doctors might also be subject to sanctions by state medical boards for violating confidentiality rules. Although such sanctions do not help the patient, they reduce the likelihood that future breaches of confidentiality will be made.