Doctor-patient confidentiality and privilege have a long history. The concept of keeping private the information a doctor may gain from a patient is stated in the Hippocratic Oath that all physicians take and in the fifth of his Laws. It also has a long history in Common Law. However, despite how second nature this concept may be, there is no federal regulation regarding doctor-patient confidentiality or privilege. For the most part, legislation around this principle has been left up to the states. Not surprisingly then, the laws vary quite a bit from state to state. Some states like Mississippi go as far as to include nurses, dentists, and pharmacists under privilege statutes while states like Massachusetts don’t have privilege statutes at all. Illinois has very little formal regulation and only requires disclosure by physicians in the case of suspected child abuse. As a state, Illinois offers no formal protection for patients or doctors in the area of confidentiality and privilege. I thought I would take a look at these statues and see just how airtight they really are.
Interestingly, one of the major issues surrounding these types of laws is their constitutionality. Are these laws effectively infringing on the physician’s right to free speech? There are several ways the Supreme Court may look favorably on these statutes. They would need to be content-neutral, be an action of wrongful conduct or, further an interest “of the highest order”.
In order for a state action to be considered content-neutral, it has to pass the test set down by the Supreme Court in Cohen v. Cowles Media Co. They stated the action is only content neutral if it does not target the press, target the message in the speech, or target speech itself. The first part is most certainly met in these statutes as the parties affected are not considered press. The second part is probably met because the statutes do not specify the type of information doctors cannot reveal, but rather prevent any unsanctioned revelation at all. However, you could certainly argue that the statutes requiring physicians to report STDs or child abuse cases would not pass this part and therefore would not be content neutral. It would be harder to argue for he last part as the confidentiality statutes certainly target the doctor’s speech.
However, there are instances where the Supreme Court has done a bit of hand waving to get around this. Take United States v. O-Brien. Here O’Brien was convicted of burning a draft card in protest of the Vietnam War. The Supreme Court upheld his conviction on the grounds that even though the laws restricted this speech, it served a government interest. It could be argued that doctor-patient confidentiality would serve a considerable government interest; as such a significant amount of tax money is spent every year on delivering effective medical care. I don’t really like this reasoning though, because it seems to me almost anything could constitute serving a government interest. Oh well.
Though not the United States Supreme Court, the Oregon Supreme Court allowed for restriction of speech in the case Anderson v. Fisher Broadcasting Cos. Here, the plaintiff was not awarded damages for the publication of his car accident because the publication of truthful facts was not wrong. This logic has been used quite frequently in many court decisions that state disclosure of medical information without consent is so wrong that the grievance of the error itself justifies action against it. I’m really not sure what to think about this one. Could it get much vaguer? What is the definition of so wrong versus just kind of wrong, and how do we make the distinction? Could then the egregious wrong done to the doctors by prohibiting their speech be so wrong that it in itself would require remedy? I don’t know. It seems the court should do a little better than that.
Lastly, the statue would have to further an interest of the “highest order” In BJF v. Florida Star, a woman sued the Florida Star for publicizing her name as the victim of a sex crime. Florida law prohibited the publication of the names of sex crime victims. The Supreme Court determined the law did not further an interest of the highest order, and therefore did not justify the prohibition of publication of true facts. Again, since the government takes such an expensive interest in the quality of health care in the United States, the success of its execution could be considered an interest of the highest order. However, this highest order necessity could be used against these confidentiality statues as well. Since the Court is unclear as to exactly what constitutes the highest order, the revelation of true facts could be justified assuming information in medical records was true.
Since doctor-patient confidentiality is a rather ancient concept, it is unlikely the courts will strike down these statutes. I’ll be the first one to agree that they certainly promote better healthcare. However, I do wonder whether if one was seriously challenged before the Supreme Court it would have a leg to stand on.
Also used in writing this blog: Frankel, Michael. "DO DOCTORS HAVE A CONSTITUTIONAL RIGHT TO VIOLATE THEIR PATIENTS' PRIVACY?: OHIO'S PHYSICIAN DISCLOSURE TORT AND THE FIRST AMENDMENT." Villanova Law Review 46 (2001): 141-166. LexisNexis Academic. LexisNexis. 26 Apr. 2009 .
I agree with you that doctor-patient confidentiality is for the best. I think along with content-neutrality, wrongful acts, and the interest of the "highest order," courts would also have to consider the right to privacy. (This could even fall under the "highest order" category.) The Health Insurance Portability and Accountability Act of 1996 deals with medical data and its transfer, but I feel it is applicable to doctors' speech. That such a law was created and has been upheld, I feel, means privacy is of the "highest order" (however vague that statement may be!).
ReplyDeleteI would also agree that doctor-patient confidentiality is a good thing. If patients' medical records were available to the public, they could obviously be discriminated against by employers or insurance companies. Ensuring confidentiality maintains trust, which is essential to every healthy relationship.
ReplyDeleteI'm a little confused by some of the legal qualifications. You say that the Supreme Court might look favorably on these statutes, and follow with three qualifications. The first is content-neutrality. I understand that part, and it sounds like these statutes don't pass the test. I'm not quite clear on the second one, which says is must be "an action of wrongful conduct". The third one, which states that it must "further an interest of the highest order" is clear, and it seems like these statutes would fit inside that category. Are these either/or qualifications, though? If not, could the Supreme Court rule these statutes as a violation of the First Amendment? It sounds like you're asking the same question... it's scary to think that these well-established healthcare policies don't really have much of a legal foundation.
I agree that these don't really answer any questions. I found the BJF v. Florida case to be a little unsettling. I would like to see what qualifies something as an interest of the "highest order".
I remember how very angry and father gets whenever he finds out my mother hasn't told him that a friend of his has been hospitalized for something very serious. He believes that she should be able to tell her own husband, but she says that she could lose her job if anyone finds out she told him. That's when he accuses her of not having trust in him and the shouting begins....
ReplyDeleteSorry, tangent. At any rate, whatever the laws in Iowa, the nurses who work at at least one health care facility, the fear of losing one's job is strong enough to keep nurses from revealing information - even the most basic personal information- to the public. I do not know if that is state law or company policy, though.
I think it would be great if patients enjoyed complete confidentiality with doctors and nurses who interact with them. Unwed pregnant teenagers, for example, are more willing to see a doctor if they can have reassurance that their parents cannot be legally notified by the hospital, for example. People with bullet holes in them are more likely to seek treatment, etc. I don't know what metric other judges have been using, but confidentiality is definitely in the interest of a "higher order" in the majority of cases.
At the same time, there are good reasons not to pass laws restricting the speech of non-governmental employees. It can create absurd, and sad, situations like I have already described, for example.