Doctor Patient Confidentiality

This post will go over some basic legal concepts that you need to know about doctor-patient confidentiality.

Confidentiality between patients and physicians is a fundamental tenet of modern healthcare and medical practice. Knowing that your doctor will keep your personal information confidential is absolutely necessary for effective medical evaluation, diagnosis, and treatment. Patients would not feel free to disclose certain things to their doctors without this safeguard.

Most people are generally aware of the concept of doctor-patient confidentiality law. We sort of just expect our doctors to keep our personal information confidential, and we understand that some ethical rules require them to do that. But few people are very familiar with the legal underpinnings of doctor-patient confidentiality. Confidentiality is more than just an ethical ideal that physicians are supposed to adhere to for their patients. Patients have an affirmative legal right to confidentiality. Most states have statutory laws protecting patient confidentiality.

When Does a Doctor-Patient Confidentiality Apply?

The legal and ethical principle of doctor-patient confidentiality applies to all communications and information within a genuine doctor-patient relationship. The doctor-patient relationship exists whenever a person seeks medical advice or treatment from a doctor and have a reasonable expectation of privacy. The doctor-patient relationship and privacy expectations do need to be expressly stated or put in writing. The relationship and confidentiality can be implied based on the circumstances.

If you walk into a doctor’s office and get a physical examination, a doctor-patient relationship exists, and all communications are confidential. However, if you are talking to a doctor at a party and you ask for his or her opinion about a medical issue, there would not be a doctor-patient relationship and no confidentiality applies.

What Does Doctor-Patient Confidentiality Cover?

Once a doctor-patient relationship arises, the doctor’s duty of confidentiality applies to any communications, records, opinions, or knowledge related to that relationship. This means that confidentiality not only applies to things you might tell your doctor but also covers any conclusions, theories, or opinions that your doctor might form in connection with your medical treatment.

The confidentiality of patient communications is not limited to conversations between patient and doctor. Confidentiality covers any statements or communications between a patient and other professional staff at the doctor’s office. Your medical records (e.g., medical history, doctor’s notes, diagnostics testing, lab reports, and the like) are also expressly covered by doctor-patient confidentiality.

Confidential information and records include:

• Any patient treatment-related information (including names) related to appointments, exams, assessments, medical procedures, referrals, diagnoses, or treatment options discussed with the patient
• Doctor’s conclusions, opinions, or assessments related to patient
• Medical records of any type, including medical history, lab tests, x-rays, and other diagnostic imaging studies
• Any communications between the patient and doctor or the doctor’s office staff members.

What Constitutes a Breach of Doctor-Patient Confidentiality?

A breach of doctor-patient confidentiality occurs whenever a doctor (or someone in the doctor’s office) discloses or releases patient information to a 3rd party without the express consent of the patient.

In other words, if your doctor shares ANYTHING about you without your consent it will be a breach of confidentiality unless there is some exception under state law.

When Can Doctor Patient Confidentiality Be Broken?

Doctor-patient confidentiality can be broken in certain circumstances, such as if

1. the patient gives written or verbal consent to share their information with others
2. there is a legal requirement to disclose information, such as reporting suspected child abuse or neglect, or reporting a patient who poses a danger to themselves or others
3. the patient is a danger to themselves or others. Disclosure of the information is necessary to prevent harm
4. a court orders the disclosure of information if there is a public health concern, such as an infectious disease outbreak, and disclosure of the information is necessary to protect public health. Exceptions to doctor-patient confidentiality under state law require doctors to share confidentiality information in certain situations based on public policy concerns. For example, doctors in Maryland must breach confidentiality to report signs of child abuse. In other states, such as New York, hospitals are legally obligated to report gunshot victims.

In addition to state law exemptions, sometimes patients may consent to share confidential information without realizing it. May doctors require new patients to sign agreements that give them consent to share patient information.

These waiver forms are usually limited in scope, however, and only allow doctors to disclose patient information when necessary and reasonable.

Other legal exceptions to a breach of doctor-patient confidentiality include:

• Medical treatment of injuries that could relate to criminal conduct (e.g., gunshot wounds, drunk driving, hit and run)
• Disclosures to the patient’s health insurance company to get insurance coverage for treatment
• Notifying public health officials if the patient tests positive for certain communicable diseases (e.g., a positive test for COVID-19)

Doctor-Patient Confidentiality for Minors

Doctor-patient confidentiality for minors varies depending on the laws and regulations of the country or state. In general, minors are usually entitled to confidentiality with their healthcare provider, especially if they are mature enough to understand their medical conditions and the implications of sharing their health information.

However, there are certain circumstances where a healthcare provider may need to break confidentiality for the safety and welfare of the minor. These may include situations where the minor is at risk of harm or abuse, is engaging in self-harm or risky behavior, or is incapable of making informed decisions about their health.  Drawing lines on these issues is challenging for healthcare providers and for courts.

In Maryland, certain minors are legally authorized to consent to their own health care based on their status, such as married minors, pregnant minors, minor parents, and minors living apart from their parents and self-supporting. Even if minors are not authorized to consent to all their care, they may still be able to do so for specific services.

Maryland laws also allow minors to receive certain services without prior parental consent, including emergency care, family planning, and contraception, treatment or advice for STDs, HIV testing, mental or emotional disorder treatment, and physical examination and treatment related to a sexual assault. Minors may also access emergency contraception without parental consent, and there is a provision for expedited partner therapy for STD prescription to a patient’s partner.

Confidentiality in Medical Malpractice Lawsuits

The rules of doctor-patient confidentiality change drastically when you file a medical malpractice lawsuit. Medical malpractice lawyers in Maryland run into this issue all the time. If you sue a doctor for medical malpractice, you must file a complaint disclosing all the otherwise confidential doctor-patient communications. Filing a lawsuit and publicizing this information is treated as express consent for the doctor to disclose confidential information regarding the treatment. You can’t sue a doctor and then use confidentiality to prevent them from defending the allegations.

When Did Doctor Patient Confidentiality Begin?

(I’m burying this at the bottom of the post because this is mostly for those writing papers on doctor-patient confidentiality than anything else.  But the answer is interesting.)

The concept of doctor-patient confidentiality has roots in the ancient Greek Hippocratic Oath, which includes a provision stating that physicians should keep patients’ medical information confidential. The modern concept of doctor-patient confidentiality developed in the late 19th and early 20th centuries, as medical ethics became a more formalized field.

In this country, the American Medical Association (AMA) adopted its first code of ethics in 1847, which included a commitment to patient confidentiality. Since then, confidentiality protections have been further developed and strengthened through legal and ethical frameworks.

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