MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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What Counts As a Breach of Doctor-Patient Confidentiality?

When you talk to your doctor, it is important to be open and honest in order to make sure you receive the best care possible. If you keep important and relevant information secret, how can you expect a doctor to make a proper diagnosis? The confidentiality of information between a doctor and patient is necessary to ensure proper health care. 

If a doctor violates that trust with a patient and discloses private medical information, it can erode the trust between the doctor and patient. It can also cause serious damage to the patient’s personal life if people in the community find out about their private information. Exposing a patient’s private information can put their job at risk, ruin their standing in the community, and even cause problems in their home life. 

A breach of doctor-patient confidentiality should be taken very seriously. In some cases, a breach of doctor-patient confidentiality can be considered medical malpractice. A medical malpractice lawsuit could allow you to recover damages for the harm caused by a negligent doctor, and help protect the rights of other patients in the future. Contact an experienced medical malpractice law firm for legal advice. 

What Is Doctor-Patient Confidentiality?

Doctor-patient confidentiality and doctor-patient privilege can be confused. In general, doctor-patient confidentiality is an ethical rule of doctors, not to share private information about a patient with others. This is similar to the privacy protections that apply under HIPAA, which prevents “covered entities” from disclosing health care information to third parties.  

Doctor-patient privilege is a legal protection that protects a doctor from having to disclose information about a patient in court, similar to the idea that a spouse cannot be compelled to testify against the other spouse. The doctor-patient legal privilege depends on state law, and not all states recognize the legal protection for doctors, or limit the extent of the privilege. 

Doctor-patient confidentiality refers to the medical privacy between a patient and their doctor. Medical privacy extends to disclosure to most third parties, unless it has been approved by the patient. In general, patients in the United States are protected from having their medical information disclosed to others.

The basis for doctor-patient confidentiality goes to the core of the patient-doctor relationship. If a patient is afraid of telling a doctor some private information out of fear the doctor would tell others, the patient may not be open or honest about their medical history, sexual history, private life, drug and alcohol use, or expressing symptoms or complaints. Without an open and honest relationship with the doctor, the doctor would not have a full picture of the patient’s history and conditions and could not provide proper medical care. 

Currently, most medical patients have their privacy protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). According to the Centers for Disease Control and Prevention (CDC), “HIPAA is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.”

Medical Ethics and Privacy

According to the American Medical Association, Code of Medical Ethics, doctors have a duty to respect the rights of their patients, including the privacy and confidentiality of a patient in their care. Principle of Medical Ethics IV provides, “A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.”

How Long Must a Doctor Maintain Confidentiality?

Doctor-patient confidentiality begins as soon as the doctor and patient establish a professional medical relationship. This does not require a formal agreement, signing a contract, or making some formal declaration. Generally, the relationship begins as soon as a physician accepts or agrees to accept providing care for a patient. This can even begin before the doctor has actually seen or treated the patient. From this point, the doctor has a duty to maintain patient privacy. 

When does the duty of confidentiality end? The duty of confidentiality continues even after the doctor is no longer treating the patient. Even if the patient says they never want to see that doctor again, the doctor has to keep the patient’s personal medical information private. The doctor-patient relationship continues even after the patient dies

When Can a Doctor Breach Confidentiality?

The doctrine of doctor-patient confidentiality is not absolute. There are a number of exceptions that allow a doctor to break confidentiality and share information with third parties, including law enforcement. In most cases, exceptions involve threats to public health or danger to others. Possible exceptions that allow doctors to disclose private information include: 

  • Evidence of child abuse
  • Information that indicates a crime has occurred or may occur
  • Information relating to public health and safety
  • Evidence of violence-related injuries
  • Evidence of domestic violence, abuse, or neglect
  • Suspicion that death resulted from criminal conduct
  • Information about sexually-transmitted diseases

Substance Abuse and Confidentiality

Many people with a substance abuse problem are resistant to seeking out medical attention because they fear that their substance abuse may expose them to criminal prosecution. This can apply to both legal and illegal drugs. This is a common concern for young people who are experimenting with drugs and/or alcohol and someone suffers a medical emergency. 

For example, three 20-year-old friends go to a party and take what they believe to be ecstasy or MDMA. They are also drinking alcohol that an older friend purchased for them. One of the individuals begins to have an adverse reaction and begins having a seizure. The friends may be reluctant to take their friend to the hospital because they are worried that they will be in trouble because they were taking illegal drugs and were drinking underage. Any delays in seeking medical help could be dangerous. 

In most cases, a doctor will not share the information that a patient gives them in confidence. The doctor’s priority should be to treat the immediate condition and the doctor will not be as concerned about whether the drugs were illegal or if the patient was drinking while underage. It is more important to be honest with the doctor so they can properly treat the patient. 

Confidentiality for Psychiatrists and Psychologists

Patients seeking mental health treatment often open up about their most private feelings and emotions. Like medical care, proper mental health care requires trust between the health care provider and the patient. In general, there is a similar doctor-patient privilege with a psychotherapist, psychologist, and psychiatrist. However, some information you tell a psychotherapist may be disclosed if it involves a threat of harm to yourself or others. 

According to an article published in the Journal Psychiatry, The Five C’s of Confidentiality and How to DEAL with Them, there are a number of exceptions to the privacy privilege. The Five C’s are: 

  • Consent
  • Court Order
  • Continued Treatment
  • Comply with the Law
  • Communicate a Threat

If a patient communicates a threat to the mental health provider, the provider may even be required to share this information. Threats may include self-harm or threats to others. Also known as the Tarasoff exception, based on a California Supreme Court Case, mental health professionals have a duty to warn and inform law enforcement when: 

  1. A patient has communicated a serious threat of physical violence against an individual; and 
  2. The mental health professional believes the patient presents a threat of violence to the person or persons who the patient threatened. 

HIPAA Violations

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is important for patient privacy because it provides broad protection to prohibit health care providers from disclosing protected information to anyone other than the patient or authorized representatives, without the patient’s consent. There are a number of provisions in the HIPAA law but for the purpose of doctor-patient confidentiality, this page will focus on the privacy aspects of the law. 

The HIPAA Privacy Rule regulates the use and disclosure of Protected Health Information (PHI) for “covered entities.” According to the Department of Health & Human Services, protected health information is “individually identifiable health information” that is: 

  • Transmitted by electronic media;
  • Maintained by electronic media; or
  • Transmitted or maintained by any other form or medium. 

Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and:

  1. Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
  2. Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and
  1. That identifies the individual; or
  2. With respect to which there is a reasonable basis to believe the information can be used to identify the individual.”

Privacy Exceptions Under HIPAA

There are several exceptions to the non-disclosure rules under HIPAA. Generally, health care providers can disclose protected information to law enforcement when required by law, including by court order, warrant, subpoena, or to locate a suspect, fugitive, witness, or missing person. 

State Laws on Doctor-Patient Confidentiality

Doctors are held to high ethical standards and may have to affirm their ethical responsibilities when they become licensed to practice medicine in any given state. However, there may also be additional state-level laws that protect patient privacy. Many of these state laws follow federal HIPAA laws but may provide additional protections.   

Doctor-Patient Confidentiality in Chicago

Illinois has a number of state laws that provide confidentiality to patients in a medical setting. These laws cover a variety of areas of a very personal nature that people may not want to disclose to others, including: 

  • HIV/AIDS 
  • Alcoholism and drug abuse
  • Genetic information
  • Medical records
  • Mental health

For example, Illinois Compiled Statutes, 410 ILCS 50/3(d) provides, “the right of each patient to privacy and confidentiality in health care. Each physician, health care provider, health services corporation, and insurance company shall refrain from disclosing the nature or details of services provided to patients,” subject to limited exceptions. 

Is a Breach of Doctor-Patient Confidentiality Considered Medical Malpractice?

Medical malpractice involves a doctor or health care provider who deviates from the accepted standard of care, that causes injury to a patient, resulting in damages or harm. Most medical malpractice cases involve a negligent doctor that does something a reasonable doctor would not have, that causes injury or harm. This could include operating on the wrong body part, giving a patient too much anesthesia causing brain damage, improper birth delivery techniques causing a birth injury, or surgery that leaves a foreign object behind

In most cases, a HIPAA violation alone does not give rise to a medical malpractice claim. However, a breach of doctor-patient confidentiality could be considered a type of medical malpractice. If a breach of the doctor-patient confidentiality is considered to be a deviation of the standard of care, and the disclosure causes injury or harm to the patient, it could give rise to a malpractice lawsuit. Injuries are not limited to physical harm. Serious emotional damage or mental distress caused by disclosing private information may be enough to be considered an injury. 

Doctor Can Disclose After You File a Malpractice Lawsuit

If you file a medical malpractice lawsuit against a doctor, you may expect to lose your right to privacy in your medical records. This is because a medical malpractice lawsuit puts the doctor’s treatment and your medical history at the center of litigation. As part of a medical malpractice lawsuit, you should expect your medical records to be of material importance in the case. You cannot file a medical malpractice lawsuit against a doctor and then claim the doctor violated doctor-patient confidentiality when the doctor discloses information about the treatment involved in your malpractice claim. 

How Can I Find a Lawyer to Help With My Case?

Medical information is very personal. You may not want your family, friends, or co-workers to know about your past, your medical history, medications, or your medical conditions. It is important for a doctor to keep your information private. If a doctor violates your trust by disclosing private medical information, talk to an attorney to understand your options. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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