Privacy and Confidentiality

  • George J. Annas

Abstract

As society becomes more and more dependent on a galaxy of information systems, two conflicting trends emerge. The first trend, exemplified by state and federal Freedom of Information or Sunshine acts, is to provide the public access to all information held by governmental agencies. The premise is that public knowledge of the most intimate details of how government works is likely to make government more responsive to the will of the people and to prevent official wrongdoing (such as trading arms for hostages). The second trend is exemplified by state and federal laws (such as the federal Privacy Act) designed to protect information about individual citizens from public disclosure. Details remain to be worked out in many areas, but the consensus is that with all forms of personal data-keeping systems, such as credit, insurance, education, taxation, criminal, and medical, individuals have or should have a right to examine and correct the information and, under most circumstances, to prevent its release without their knowledge and express consent.

Keywords

Malaria Measle Syphilis Tetanus Cholera 

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Notes

  1. 1.
    Ervin, Civilized Man’s Most Valued Right, 2 Prism 15 (June 1974); cf. A. Westin & M. Baher, Data Banks in A Free Society (New York: Quadrangle, 1973), at 17-20; A. Miller, The Assault on Privacy (New York: New American Library, 1972), at 148-220. And see generally ABA Forum Committee on Health Law, A Practical Guide to Access, Disclosure and Legal Requirement Relating to Hospital, Patient, Medical Staff and Employee Records (Chicago: American Bar Association, 1987).Google Scholar
  2. 2.
    Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 801 (ND Ohio 1965).Google Scholar
  3. 3.
    Altaian, “Physician-Patient Confidentiality Slips Away,” New York Times, Sept. 27, 1983, at Cl.Google Scholar
  4. 4.
    Siegler, Confidentiality in Medicine— A Decrepit Concept, 307 New Eng. J. Med. 1519(1982).Google Scholar
  5. 5.
    Other reasons supporting patient access are discussed in the preceding chapter, “Medical Records.”Google Scholar
  6. 6.
    In Curry v. Corn, 277 N.Y.S. 2d 470 (1966), for example, the physician disclosed information to his patient’s husband, who was contemplating a divorce action. In Schaffer v. Spicer, 215 N.W.2d 134 (S. D. 1974), the wife’s psychiatrist disclosed information to the husband’s attorney to aid him in a child custody case. Representative of the insurance cases are Hague v. Williams, 37 NJ 328, 181 A.2d 345 (1962), where the pediatrician of an infant informed a life insurance company of a congenital heart defect that he had not informed the child’s parents of, and Hammonds v. Aetna (supra note 2), where the physician revealed information to an insurance company when the insurance company falsely represented to him that his patient was suing him for malpractice. Cases involving reporting to employers include Beatty v. Baston, 13 Ohio L. Abs. 481 (Ohio App. 1932), where the physician revealed to a patient’s employer during a workman’s compensation action that the patient had venereal disease; Clark v. Geraci, 208 N.Y.S.2d 564 (Sup. Ct. 1960), where a civilian employee of the United States Air Force asked his doctor to make an incomplete disclosure to his employer to explain absences, but the doctor made a complete disclosure including the patient’s alcoholism; Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973), which involved the disclosure of a long-standing nervous condition; and Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113 (1985), cert. denied, 447 U.S. 1013 (1985), which involved disclosure of psychiatric information to a minister’s clerical superiors that resulted in his not being reappointed. And see Note, Breach of Confidence: An Emerging Tort, Colum. L. Rev. 1426 (1982); and Winslade, Confidentiality of Medical Records, 3 J. Legal Medicine 497 (1982).Google Scholar
  7. 7.
    The most important exceptions are: 1. Communications made to a doctor when no doctor-patient relationship exists 2. Communications made to a doctor that are not for the purposes of diagnosis and treatment or are not necessary to the purposes of diagnosis and treatment (for example, who inflicted the gunshot wound and why) 3. In actions involving commitment proceedings, wills, and insurance policies 4. In actions in which the patient brings his physical or mental condition into question (for example, a personal injury suit for damages, raising an insanity defense, malpractice action against a doctor or hospital) 5. Reports required by state statutes (for example, gunshot wounds, acute poisoning, child abuse, motor vehicle accidents, and, in some states, venereal disease) 6. Information given to the doctor in the presence of another not related professionally to the doctor or known by the patient. And see generally Benesch & Homisak, “The Physician-Patient Relationship: Privileges and Confidentiality” in Zaremski & Goldstein, eds., Medical Hospital Malpractice Liability (New York: Callaghan & Co., 1987)Google Scholar
  8. 8.
    A. Westin, Privacy and Freedom (New York: Atheneum, 1967), at 7.Google Scholar
  9. 9.
    Horne v. Patton, supra note 6, 287 So. gd at 830.Google Scholar
  10. 10.
    Miller, Personal Privacy in the Computer Age, 67 Mich. L. Rev. 1091, 1107(1968).Google Scholar
  11. 11.
    In 1939, for example, Time magazine published a story in its “Medicine” section with a photograph of the patient, a young woman who was receiving treatment for uncontrollable gluttony apparently induced by a condition of thepancreas (Barberv. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 [1942]). Other cases, like Horne v. Patton (supra note 6), however, indicate that publication is not necessary to sustain an invasion-of-privacy action, for example, having unauthorized persons in a delivery room (DeMay v. Roberts, 46 Mich. 160, 9 W. 146 [1881]). Permitting unauthorized persons to view confidential medical records may also be an invasion of privacy.Google Scholar
  12. 12.
    Cal. Health & Safety Code sec. 2554 (Supp. 1970).Google Scholar
  13. 13.
    Landeros v. Flood, 17 Cal. 3d 399, 131 Cal. Rptr. 69, 551 P.2d 389 (1976) (physician could be liable to child for injury suffered from child abuse after physician’s failure to report earlier incident of child abuse).Google Scholar
  14. 14.
    N.Y. Penal Code sec. 265.25 (Supp. 1969). And see generally Rose, Pathology Reports and Autopsy Protocols: Confidentiality, Privilege and Accessibiliy, 57 Am. J. Crim. Proc. 144 (1972); and Denver Pub. Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974) (autopsy reports open to public under Open Records Act). No statute is needed to authorize release of confidential medical information when a danger to the public exists. The leading case enunciating this exception, Simonsen v. Swenson, 104 Neb. 994, 177 N.W. 831, was decided by the Supreme Court of Nebraska in 1920. In that case, a man who was visiting a small town was seen by a physician who was also the physician for the hotel in which he was staying. The physician diagnosed syphilis and advised the patient to “get out of town,” or he would tell the hotel’s owner. When the patient remained in town, the doctor notified the landlady, who disinfected his room and placed his belongings in the hallway. The court decided that the doctor had the right to reveal only as much information concerning a contagious disease as was necessary for others to take proper precautions against becoming infected, and that his actions under the circumstances were justified.Google Scholar
  15. 15.
    E.g., Dennie v. University of Pittsburgh School of Medicine, 638 F. Supp. 1005 (W.D. Pa. 1986); and Commonwealth v. Petrino, 480 A.2d 1160 (Pa. 1984), cert. denied. 471 U.S. 1069 (1985).Google Scholar
  16. 16.
    Supra note 7; And see, e.g., Turkington, Legal Protection for the Confidentiality of Health Care Information in Pennsylvania, 32 Vill. L. Rev. 259, 302-72(1987).Google Scholar
  17. 17.
    Hofmann v. Blackmon, 241 So. 2d 752 (Fla. App. 1970); and see Wojcik v. Aluminum Co. of America, 183 N.Y. S. 351, 357 (1959); and Jones v. Stanko, 118 Ohio St. 147, 160 N.E. 456 (1928).Google Scholar
  18. 18.
    Davis v. Rodman, 147 Ark. 385, 227 S.W. 612 (1921) (typhoid); Skillings v. Allen, 143 Minn. 323, 173 N.W. 663 (1919) (scarlet fever).Google Scholar
  19. 19.
    Tarasoff v. Regents of U. of California, 131 Cal. Rptr. 14, 551 P.2d 334 (1976).Google Scholar
  20. 20.
    Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, 90 Harv. L. Rev. 358 (1976); and see Note, Where the Public Peril Begins: A Survey of Psychotherapists to Determine the Effects of Tarasoff, 31 Stan. L. Rev. 165(1978).Google Scholar
  21. 21.
    See, e.g., Mclntosh v. Milano, 168 NJ Super. 466, 403 A.2d 500 (1979); Bradley Center v. Wessner, 287 S.E.2d 716 (Ga. Ct. App. 1982); Williams v. US, 450 F. Supp. 1040 (D.S.D. 1978); Bordoni v. Kim, 390 N.W.2d 218 (Mich. 1986); Davis v. Lhim, 355 N.W.2d 481 (Mich. 1983); Lipan v. Sears & Roebuck, 497 F. Supp. 185 (Neb. 1980); duty to warn not found: Furi v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983); Cooke v. Berlin, 735 P.2d 830 (Ariz. 1987); Hinkelman v. Borgess Medical Center, 403 N.W.2d 547 (Mich. 1987). See generally Note, Psychiatrist’s Liability to Third Parties for Harmful Acts Committed by Dangerous Patients, 64 N.C.L. Rev. 1534 (1986).Google Scholar
  22. 22.
    See Barron, “A Debate Over Disclosure to Partner of AIDS Patients,” New York Times, May 8, 1988, at E8; and Wilkes & Shuehman, “Holy Secrets,” New York Times Magazine, Oct. 1988, at 57Google Scholar
  23. 23.
    See Siegler, supra note 4.Google Scholar
  24. 24.
    See discussion of “blanket consent forms” in ch. VI, at p. 93.Google Scholar
  25. 25.
    Privacy Protection Study Commission, Personal Privacy in an Information Society (Washington, DC: Government Printing Office, 1977), at 314. For example, most life insurance companies require all who apply for insurance to agree to release their medical records to the Medical Information Bureau, an information exchange agency operated by approximately 700 life insurance companies in the United States and Canada. Although the MIB has taken steps to try to maintain confidentiality of this information from nonmember companies and others, it still has an anachronistic policy of refusing to release the medical information it maintains on an individual to the individual himself and, instead, requires the individual to designate a physician to receive the information “so that the nature and importance of the medical findings can be properly interpreted.” See Entmacher, Medial Information Bureau, 233 JAMA 1370, 1372 (1975) (information on an individual’s file can be obtained by writing MIB at Box 105, Essex Station, Boston, Mass. 02112).Google Scholar
  26. 26.
    Id., citing American Psychiatric Association, Confidentiality and Third Parties (Washington, DC: APA, 1975), at 13.Google Scholar
  27. 27.
    Personal Privacy, supra note 25, at 293-314.Google Scholar
  28. 28.
    Commonwealth v. Wiseman, 356 Mass. 251, 259, 249 N.E.2d 610, 616 (1969).Google Scholar
  29. 29.
    Berthiaume v. Pratt, 365 A.2d 792 (Me. 1976).Google Scholar
  30. 30.
    Id. at 796-97. See also Knight v. Penobscot Bay Medical Center, A.2d 915 (Me. 1980). (A jury verdict in favor of the hospital in which the husband of a staff nurse had viewed a birth was affirmed. The jury had been instructed to find in favor of the plaintiff only if it found the intrusion was intentional and “would be highly offensive to a reasonable person.”)Google Scholar

Copyright information

© George J. Annas and the American Civil Liberties Union 1992

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  • George J. Annas

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