Introduction

Physician stewardship of patient confidential information is not as clearly articulated in the law as many think.

First, new federal regulation known as the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)¹ creates federal civil monetary and criminal penalties for improper disclosure of confidential patient information, but does so without giving patients rights to personally sue a doctor for misuse of confidential information. Under HIPAA, patients make complaints of improper disclosure of confidential information to the Office of Civil Rights of the Department of Health and Human Services and proceedings are brought in administrative hearing.

Second, prior to HIPAA, physician responsibilities for protecting confidential patient information were explicitly codified only in the ethical and professional standards of the profession and the language of state licensing acts. A cause of action in court to recover financially for losses caused by an improper disclosure must be grounded on less specific state common law theories of breach of confidence or invasion of privacy. Of course, myriad mandatory reporting laws make it obligatory for physicians to disclose certain confidential patient information to protect public health or prevent crimes. In those cases, there is no violation of professional standards or a breach of confidentiality cause of action.

Third, the legal concept of doctor–patient privilege needs to be differentiated from the topic discussed in this chapter. Legal actions are governed by rules of evidence that determine the admissibility or discoverability of certain information. Privilege refers to a class of information that is exempted from use in court. The right to exert privilege to prevent certain information from being used belongs in some instances to the person in possession of the information (physician) and in some instances to the person who is the subject of the information (patient). Specifically, the doctor–patient privilege never historically existed in English and American law. The privilege was created only later by state statutes. Today, however, there are many exceptions to statutory doctor–patient privilege stemming from mandatory reporting of public health information, in all matters pertaining to criminal cases, and in malpractice and workers compensation cases where the patient puts his medical condition into issue. Despite popular cultural assertions to the contrary, the concept of doctor–patient privilege is largely without legal viability.

Foundations of Physician Confidentiality

Thousands of years ago the original version of the Hippocratic Oath enunciated the physician’s duty to honor patient confidences, describing a breach of that duty as something shameful. Modern versions of the Hippocratic Oath, recited at medical school commencements everywhere, do not diminish the original oath’s emphasis on the duty of the physician to keep private the confidences of patients.² If anything, the modern version elevates the importance of patient privacy by situating it in the paragraph that reminds physicians to save life, to be humble witnesses to death, and never “to play at God.”

The ancient Greeks no doubt understood that medical care was a societal good. Healing loved ones, prolonging life, and promoting a healthy community serve basic human desires and put to good use the technological and scientific advancements created by society. Both in ancient and modern times, medical care functions most successfully when the patient is assured of complete confidence on the part of the physician.

The inevitable vulnerability one feels when sharing both nakedness and illness is surely the most fundamental source of the need for physician confidence. Within the family relationship the sharing of nakedness and illness is accepted because there exists an automatic assumption of protection, selflessness, and love. Expert medical care, however, is provided to an enormous degree outside of the protections of the family structure. Only if one is guaranteed that their vulnerabilities are protected—body, behavior, and illness—can patients feel secure in divulging their most human conditions. Medical care and the benefits it imparts on society are optimized when patients are honest with their physicians. The guarantee that society holds the physician responsible for confidential stewardship of that private information is an absolute requisite for medicine to function and yield benefits to the community.