The Doctor’s Advocate | Third Quarter 2018
Government Relations Report

New Limits on Doctor-Patient Confidentiality

Dennis W. Chiu, JD, Government Relations Specialist, Government Relations, and Elizabeth Y. Healy, Assistant Vice President, Government and Community Relations

“And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets.”

—Hippocratic Oath1

Physicians have legal and ethical obligations to protect private patient information gathered during the course of treatment. A patient who fears disclosure of private information may be reluctant to reveal personal details necessary for effective care. However, in the past few years, responses by courts, legislatures, and policymakers to public health and safety threats have imperiled the confidentiality of doctor-patient communications.

Washington Court Broadens Tarasoff

One of the best-known exceptions to confidentiality is the requirement for a Tarasoff warning, so called because the rule came from the decision in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976). In that case, the patient, a student at U.C. Berkeley, confided to his psychologist that he planned to kill a woman he had been stalking. Campus police briefly detained the man on a recommendation from the psychologist, but no one warned the intended victim. After his release from detention, the patient committed the murder he had described. The victim’s family sued, and the California Supreme Court eventually held that a mental health professional has a duty of care not only to a patient but also to individuals specifically threatened by the patient. A majority of states recognize this duty in statute or common law.2

In 2016, the Washington Supreme Court broadened the duty to warn. In Volk v. DeMeerleer, 187 Wash. 2d 241, a woman sued a psychiatrist whose patient revealed that he often thought about killing himself and other people but did not identify the individuals he might attempt to harm. The patient eventually killed the plaintiff’s daughter—his ex-fiancée—and grandson. The court held that the psychiatrist’s duty included an obligation to protect the patient’s foreseeable victims, even without a specific threat against an identifiable individual.

New Law Mandates Reporting Patients to Law Enforcement

A 2018 New Jersey bill pushes the Tarasoff warning into the gun control controversy. The duty to warn in New Jersey has been broadened to require any practitioner in psychology, psychiatry, medicine, nursing, clinical social work, or marriage and family therapy who determines that a patient poses a threat to notify the top law enforcement officer of the city in which the patient resides. If law enforcement determines that the patient has authorization to possess firearms, the authorization is voided, and the court may revoke the permits and order the patient to surrender his or her firearms to the county prosecutor.

The bill was part of a package of gun control legislation introduced after a number of mass shootings. Legislators cited recent tragic events in Parkland, Florida, and Las Vegas, Nevada, in arguing for increased restrictions on gun ownership.

Opponents to the bill argued unsuccessfully that mental health patients might not speak candidly to their therapists for fear of losing their guns.

The new law went into effect when the governor signed it on June 13, 2018.

State Medical Board Accesses Doctor-Patient Information Without Consent

In 2017, a patient brought a California Medical Board complaint against her physician for providing unprofessional dietary advice. As part of the preliminary investigation, the medical board investigator obtained a report of the physician’s controlled substance prescription history from the state’s prescription monitoring system, the Controlled Substance Utilization Review and Evaluation System (CURES), without first receiving consent from the

hundreds of patients on the 205-page prescription report who were not involved with the complaint.

After reviewing the report, the board filed allegations against the physician related to the original complaint and excessive prescribing allegations linked to five patients that the board uncovered during its investigation.

After losing at the board hearing, the physician challenged the investigation in the courts, arguing that the medical board had conducted a fishing expedition and violated his patients’ privacy. The California Supreme Court supported the medical board’s intrusion into his patients’ privacy, holding that “even assuming the Board’s actions constituted a serious intrusion on a legally protected privacy interest, its review of these records was justified by the state’s dual interest in protecting the public from the unlawful use and diversion of a particularly dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians.”3

The medical board’s duty is to protect the public from impaired or negligent physicians. In this instance, a side effect of its efforts was that hundreds of patients’ confidentially prescribed medication information was disclosed when another patient made a formal complaint against her doctor in an unrelated matter.

Conclusion

The courts, legislatures, and other policymakers balance protection of the public against the need for medical confidentiality. How they strike that balance varies from place to place and changes in response to current events. Healthcare professionals must be aware of their obligations to maintain patient confidentiality and to observe changing legal requirements. We will continue to provide updates in future issues of The Doctor’s Advocate.


References

  1. Hippocrates. Hippocrates with an English Translation. Volume 1. Jones WHS, trans. London, England: William Heineman Ltd; 1923:301.
  2. Johnson R, Persad G, Sisti D. The Tarasoff rule: the implications of interstate variation and gaps in professional training. J Am Acad Psychiatry and Law. December 2014;42(4):469–477.
  3. Lewis v. Superior Court (2017) 3 Cal. 5th 561, 572.

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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