A Conflict of Interest

by Ann S. Lofsky, M.D., Anesthesia Consultant and Governor Emeritus

The Hippocratic Oath includes admonitions to cause no harm, and it is certainly something that physicians strive for in their daily practices. Sometimes, however, the path leading toward doing “the right thing” is not very clearly delineated. Ethical dilemmas may appear in the most unlikely places, as the physician involved in the following case discovered.

Our insured psychiatrist volunteered as a consultant to the counseling department at a nearby university. In this capacity, he became acquainted with a number of the counselors. One day, the psychiatrist arrived at the school for a staff meeting and found one of the counselors anxiously pacing and crying alone in his office. The man said that he had had a dispute with a friend and thought that he might need to be admitted to a psychiatric hospital. The insured sensed that the level of distress seemed out of proportion to the situation described, but he was able to calm the man and proceed with the scheduled staff meeting.

Later that day, the insured received a phone call asking him to meet the counselor at the counselor’s home. During this meeting, the man again appeared to be quite agitated. He confessed that he was having an affair with a female student who had come to him for counseling, and he stated that he was upset they had just broken up. He asked the insured to speak with the student and to help them get back together. The psychiatrist refused, stating that the situation presented a conflict of interest with his responsibilities to the school and that he did not feel comfortable discussing the matter further.

The insured offered to find the counselor another psychiatrist outside the university, and although initially reluctant, the man finally agreed. The next day, the insured received a phone call in his office from a distraught young woman. She identified herself as the student with whom the counselor was having the affair and stated that the counselor had told her he had spoken with the insured about her. She said that she wanted nothing further to do with the man, as he had become demanding and verbally violent. She believed that he was stalking her, and she was frightened of him. She added that she knew the counselor had also had a number of affairs with other female students. The psychiatrist reassured her that she was doing the right thing in terminating the relationship and offered to find her a treating psychiatrist. The insured had one other conversation with the counselor that dealt only with finding him an acceptable therapist.

If You Were the Psychiatrist, What Would You Do Now?

The insured believed that as part of his duty to the university, he had a responsibility to make sure that the counselor’s inappropriate behavior with students did not continue. He was concerned, however, that although there had been no formal physician-client relationship, there might be an implied confidentiality agreement regarding the information that had been disclosed to him. The psychiatrist consulted an attorney who was a personal friend. The attorney’s advice was to tell the university not what the counselor had confided but only what he had learned during the phone call with the student.

The insured then contacted the dean in charge of the university’s counseling department and discussed what the student had told him. An independent investigation was conducted, and it was determined that there had been inappropriate behavior on the part of the counselor. When informed of this, the counselor submitted a letter of resignation, which was accepted by the university.

What Does This Have to Do with Medical Malpractice?

The counselor subsequently withdrew his resignation from the university, claiming that it had been coerced. He filed a lawsuit against the psychiatrist, alleging that he had confided information provided in a therapeutic setting and that confidential information had been divulged inappropriately. He sought reimbursement for his loss of income and restitution for suffering embarrassment, loss of professional reputation and opportunity, and emotional distress.

Should This Case Be Tried?

Defense experts felt that the insured had acted within the standard of care by disclosing only what was discussed during the phone call with the student and nothing from any therapeutic sessions with the counselor. It was further opined that the insured had never taken the counselor on as a patient, making it moot whether any confidential information from the talks was disclosed. It was hoped that in today’s climate, a jury would be sympathetic to the need for not concealing an incident of possible sexual misconduct in a school situation.

At trial, the insured was not allowed to testify as to what the student had told him because it constituted hearsay (repeating what someone else said). The student was not allowed to testify because her testimony was ruled by the judge as irrelevant to the malpractice allegation at hand (whether the insured divulged information that had been presented in a therapeutic situation).

The plaintiffs argued that the counselor had reason to believe he was confiding within the context of a therapeutic relationship and that what he said would be strenuously protected. They opined that since a physician-client relationship existed, none of the select exceptions allowing a breach of confidentiality (such as disclosure of an immediate threat of physical violence against an identifiable victim) were met.

When asked on the stand why he had disclosed the information, the psychiatrist stated that he was afraid for the safety of the female students and that he was concerned the plaintiff might become suicidal. The plaintiff’s attorney then argued that there was no evidence presented of a physical threat to anyone, only of the possibility of romantic or sexual encounters with women at the school. They further argued that since the insured did not act for weeks on the information provided, he could not simultaneously argue that he thought there was an immediate threat to anyone. The plaintiff’s experts opined that “female students” was too vague to constitute a readily identifiable victim as an exception to the confidentiality agreement.

Despite an aggressive defense presentation regarding the lack of any therapeutic relationship, the jury concluded that the plaintiff had been irrevocably harmed by the disclosures of the insured. It was felt that any disclosure of confidential information under these circumstances violated the standard of care for psychiatry, and the counselor was awarded a large sum.