PRIVACY, CONFIDENTIALITY, PRIVILEGE in MEDICINE

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PRIVACY

 

Every person has a right to privacy and any unlawful invasion of that right is actionable, that is a tort or wrong for which one can be sued.

Generally, this tort is called an 'invasion of privacy'.  [See Berthiaum for an example].

The right to privacy exists does not depend upon a physician/patient relationship.  The famous inventor, Thomas Edison, successfully sued Polyform Manufacturing for invasion of privacy to prevent them from using his likeness on one of their products.  No physician/patient relationship was involved in that suit.

The legal right to privacy is complex and can include:

(1)  Intrusion upon the plaintiff’s physical and mental solitude and seclusion,

This was part of the basis for the invasion of privacy claim in Berthiaume.

(2)  Public disclosure of private facts.

One sometimes see this when someone posts private video on YouTube or other sites.

(3)  Publicity which places the plaintiff in a false light in the public eye,

Deliberately publishing false information about a private citizen may land you in court for several causes of action, including defamation of character and invasion of privacy.  Journalist, Mark Steyn is currently being sued by climate change scientist, Michael Mann for defamation.

(4) Appropriation for the defendant’s.

This was was an element in Edison's suit against Polyform Manufacturing.  This were using his famous image to increase sales and profits of their product.

 (5) Government intrusion or interference with private rights.

This is the Griswold v. Connecticut and Roe v.Wade issue.

The Griswold case famously held to be unconstitutional a Connecticut statute controlling birth control measures commonly used by married couples.  Although the U.S. Constitution does not use the word 'privacy' the Court reasoned that it intended to protect privacy rights by virtue of other specifically protected rights, such as

the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A privacy argument similar to Griswold was deployed by the Court in the Roe v. Wade case that drew limits on the right of a state to prohibit abortion.

GREATEST INVASION OF PRIVACY RISKS FOR HEALTH CARE WORKERS

First of all. remember that a physician's malpractice carrier may not pay a judgment based on invasion of privacy.  Probably the most frequent suits for invasion of privacy brought by patients against physicians are for unauthorized use of patient photographs.

Elena Chernyakova, 23, is claiming invasion of privacy and infliction of emotional distress in a $1.5 million lawsuit filed against Dr. Vinaya Puppala, the Feinberg School of Medicine and the Northwestern Memorial Hospital.

Be reminded that an invasion of privacy suit does not require a physician/patient relationship.  The suit would be just as valid if the janitor had taken the photos and put them on Facebook, although it is hard to see how one would get $1.5 out of a janitor unless one added the hospital as a defendant under respondeat superior.

Then there is the doctor who faced Medical Board disciplinary action in addition to an invasion of privacy suit by his patient for taking a photo of patient's penis that had "Hot Rod" tattooed on it.

     Peeking at Records

Another avenue of potential liability comes from improper access of patient's records.  Unless the record search is part of the care and treatment of the patient, access could pose a HIPAA violation and an invasion of privacy suit.   Note this news article:  Workers Fired in Privacy Breach at L.A. Hospital Popular With The Stars

CONFIDENTIALITY. 

The duty to respect patient confidentiality does arise directly from the physician/patient relationship.

The physician/patient relationship is a contractual relationship in which a physician implicitly accepts a number of professional duties with respect to his patient.  One of those duties is to safeguard the confidences of his patient.  A failure to safeguard patient confidences is a tort, a wrong that may be remedied by a suit for damages.  A physician may also face disciplinary action for wrongful disclosure of patient confidences.

Though similar to the duty to respect someone's privacy, the duty to protect patient confidences can be distinguished.  An example may show one of those ways.  Assume you are treating the town mayor for an STD.  All information pertaining to your care of the mayor is confidential and may not be discussed or revealed to others except when interacting with other professionals assisting with treatment.  Now assume that that information is revealed to the local newspaper by his wife and becomes the subject of public scandal.  Although the general public can discuss the mayor's embarrassing disease because it is not longer private, you still cannot discuss it because it is still confidential in the physician/patient relationship so far as you and your treatment of the mayor are concerned.

PRIVILEGE.

Privilege is often confounded with confidentiality, but the two are different.  Confidentiality entails a physician duty not to reveal the information negligently or intentionally.

Privilege is more of an evidentiary status.  Privileged information cannot be used in court, and a person usually cannot be compelled by a court to reveal privileged information.  For example, Discovery proceedings in litigation can typically acquire all relevant information not privileged, that relates to the suit.

A person legally entrusted with confidential information that is not privileged can be sued if he discloses it wrongfully, but he can also be ordered by a court to reveal it.  Of course, complying with a court order is not wrongful disclosure that normally would lead to liability.

On the other hand, information that is both confidential and privileged cannot normally be disclosed even by discovery.  Examples of types of information that are both confidential and privileged are communications between a person and his spiritual adviser; communications between client and attorney; and communications between patient and psychiatrist.  In some jurisdictions ordinary physician/patient interactions are also both confidential and privileged.

EXCEPTIONS TO THE GENERAL RULE TO GUARD CONFIDENCES

Child/Elderly Abuse

Gunshot and Knife Wounds

Communicable and certain Other Diseases

Imminent Danger to Others (Tarasoff case)

Tarasoff was a landmark case in California that held that a mental health therapist who learned in the course of treatment that his patient was contemplating killing a third party (not a patient) had a duty to protect the threatened stranger.

The court opinion is too complex and addresses too many other issues to require that it be fully read.  However, some important excerpts in the case follow here:

Tarasoff court opinion excerpt.  Bold by Island Court:

The most important of these considerations in establishing duty is foreseeability. As a general principle, a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous."

Defendants further argue that free and open communication is essential to psychotherapy (see In  re Lifschutz (1970) 2 Cal.3d 415, 431 434 [85 Cal. Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]); that "Unless a patient . . . is assured that . . . information [revealed by him] can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends." (Sen. Com. on Judiciary, comment on Evid. Code, § 1014.) The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications.

We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy (see In re Lifschutz, supra, 2 Cal.3d at p. 432), and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. The Legislature has undertaken the difficult task of balancing the countervailing concerns. In Evidence Code section 1014 , it established a broad rule of privilege to protect confidential communications between patient and psychotherapist.  In Evidence Code section 1024 , the Legislature created a specific and limited exception to the psychotherapist-patient privilege: "There is no privilege . . . if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."

We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. To the contrary, the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.  

The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: "A physician may not reveal the confidence entrusted to him in the course of medical attendance . . . unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community."

We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others.  The protective privilege ends where the public peril begins.

For the reasons stated, we conclude that plaintiffs can amend their complaints to state a cause of action against defendant therapists by asserting that the therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger.