Danielle Imbemba Legal Ethics Final Paper Physician-Patient Privilege

The physician-patient privilege is a legal concept that prohibits physicians from divulging confidential information in a court of law that had been acquired while a patient was in their care without the consent of the patient. This privilege is in place in order to maintain a level of trust between the physician and patient so that the physician can properly treat the patient. If a patient was afraid that what they communicated to their physician would be reported to authorities, the patient would most likely not be completely truthful with their physician. This privilege allows the patient to be able to be honest about their injuries or illnesses and receive proper treatment. According to the Federal Rules of Evidence Rule 501 is a general rule of all privileges in federal criminal proceedings. The privilege of a person in different forms such as a witness, or the

state is to be ruled by common law with rationale and understanding. In civil proceedings the privilege is to be ruled in compliance with State Law. This general rule was enacted to protect federal courts from the restraints that comprehensive privileges created and for the courts to be able to use the conditions of each case to determine the use of the privilege. The case of Tarasoff v. Regents of the University of California set a precedent in 1974 and changed the physicianpatient privilege in the courts. It gave physicians the responsibility to violate the clients privacy if he has a rational belief that the patient is a danger to another person. In this case the victim, Tatiana Tarasoff, was murdered by Prosenjit Poddar, a fellow student who felt that the two of them had a special relationship. Poddar felt that Tarasoff was flaunting her other relationships with men and started seeing a therapist, Dr. Moore, at the University Health Service. While there he revealed his intention to obtain a gun and shoot Tarasoff. The plaintiffs, victims parents, are suing defendants alleging that they failed to warn victim of impending danger, and failed to confine patient. Defendants motion to

dismiss was granted but on appeal the court reversed the dismissal of the failure to warn claim holding that defendant therapists' special relationship to patient was extended to victim, and a duty existed to use reasonable care where they had knowledge that patient was going to harm victim( 17 Cal. 3d 425). The case held that when a therapist determines, or in regards to the standards of his profession should determine, that his patient shows a serious danger of violence to another, the therapist obtains an obligation to use reasonable care to protect the potential victim against potential danger. This case brought about the precedent that for many therapists, harm to others will surpass this privilege and a therapist can and has been held liable for failure to inform appropriate people if their patient reveals a risk to themselves or if the patient makes a specific threat against another person. Cases such as Riley v. United Health Care of Hardin, 165 F.3d 28 (1998), Falk v. Southern Maryland Hospital, Inc., 742 A.2d 51 (1999), and Tabor v. Veterans Administration, ex. rel. U.S., 198 F.3d 247(1999) were all cases that referenced the statue, applied it to their analysis, and ultimately found that it created a

duty.

While the physician-patient privilege is recognized in the states capacity each state has their own interpretation. In New York under the New York Civil Practice Law & Rules, Article 45 4504, those acting as a physician, dentist, podiatrist, chiropractor, and nurse are not allowed to reveal any information relating to a patient in a professional setting unless that client relinquishes the privilege. In New Jersey under the New Jersey Rules of Evidence, Article V. Rule 506, a physician is described as a person authorized or reasonably believed by the patient to be authorized, to practice medicine in the State or jurisdiction in which the consultation or examination takes place. The patient has a right to refuse to reveal and to refuse to allow a physician to reveal classified communications between patient and physician. These descriptions of privileges are extremely similar which lead me to question why there isnt a federal privilege. In the case of Ragsdale v. State of Arkansas, the appellant while driving across a bridge collided with another car

resulting in the death of the Albert Passmore, a passenger of the car Ragsdale collided with and injuries to the appellant. Appellant claims that "the trial court erred in permitting evidence of a bloodalcohol test run on appellant (245 Ark. 296). Dr. Ledbetter conducted a blood test on the appellant which showed some traces of alcohol. Dr. Ledbetter conducted this test solely for diagnostic purposes such as prescribing for and treating the injuries of the appellant. The relationship between Dr. Ledbetter and appellant was that of a physician-patient but the result of the tests were admitted into evidence over constant objections by appellant. If this had been a civil action the result of the test would be considered a privileged communication between physician and patient and would be inadmissible into evidence, but, because this is a criminal case that privilege does not apply. The issue of whether or not privileges are able to be used in criminal cases had never been clearly decided. This case was reversed and ultimately led to the conclusion that the statute in question applies to criminal as well as to civil cases. If that was not the intent of the legislature we

prefer to let it so state (245 Ark. 296).

While researching law review articles on the physicianpatient privilege it was apparent that in almost all of the articles I came across discussions of the HIPAA Privacy Rule, enacted in 2003, which controls the admission of information held by health care personnel. This rule places certain restrictions on the disclosure of Protected Health Information, which is any information held by heath care personnel regarding a persons health condition, terms of health care, or payment of health care. This rule in a way created a federal privilege over medical information. I came across the American Health Lawyers Association, Journal of Health Law and found this article to be very informative and one that included the HIPAA discussion as well. The article begins with the publics privacy concerns after the United States government challenged the constitutionality of the Partial-Birth Abortion Ban Act of 2003. The government subpoenaed medical records of patients who received abortions in hospitals and centers across the country.

The author of the article discusses solutions for protecting medical information with one being to create a federal physicianpatient privilege. While many states have a physician-patient privilege that stops the admission of private medical information in court, there is no structured defense for people in opposition to the governments finding of private medical information. Much like in the case of Ragsdale v. State of Arkansas the lack of a federal physician-patient privilege can lead to disclosure of information that if really checked should not necessarily be exposed. In my research I found that the lack of this federal privilege truly concerns the public. After researching this topic and gaining a better understanding of all it entails I have certainly learned a lot and developed my own opinions on it. The physician-patient privilege is in place so that patients can feel comfortable seeking medical treatment without worrying about potential incrimination. I believe privileges are necessary because of the confidential information that is being protected. When it comes to the privilege of a physician and a patient I believe the utmost care and confidentially

should be enforced due to the extremely private nature of the information. Many people, on a normal basis feel uncomfortable when seeking medical expertise because it is a personal matter, when you add the fact that it could potentially be exposed to others that hesitation is heightened. Ultimately people are afraid of revealing information to doctors because it may get out, but with the physician-patient privilege this reassures people that what they are saying is in confidence. The state courts recognize this privilege under their own jurisdictions whereas federal courts do not which is a big concern for people. However, some people presume that there is a federal physician-patient privilege and not only answer the specific personal questions required to treat a patient but also divulge further thinking that they are protected by such a privilege. I believe that there should be a federal physician-patient privilege enacted. Custody of medical records by the federal government should need to meet a higher standard due to the sensitivity of the materials. Once information that is private is leaked there is no taking it back and could potentially alter a persons life and so I

believe the highest care should be used when determining whether or not to release medical information.

Citations
Falk v. Southern Maryland Hospital, Inc., 742 A.2d 51 (1999) Ragsdale v. State, 245 Ark. 296 (1968) Riley v. United Health Care of Hardin, 165 F.3d 28 (1998) Tabor v. Veterans Administration, ex. rel. U.S., 198

F.3d 247(1999) Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976) Federal Rules of Evidence, Rule 501 New Jersey Rules of Evidence, Article V. Rule 506 New York Civil Practice Law & Rules, Article 45 4504