CENTRAL  SOUTH  DAKOTA  MEDICAL NEWS
THE CLINICAL VIEW
By: Phillip E. Hoffsten, M.D.
4  JANUARY  2001

Patient Confidentiality: To Tell or Not To Tell

One of the basic themes of all patient care is the confidentiality of the information the patient shares with a healthcare provider. In the Hippocratic oath that was written more than 2000 years ago, Hippocrates laid down the rule that he would not share any information that a patient confided to him. There was thus born the sacred rule that doctor patient relationships are confidential, and that rule has survived through the centuries until recently. I doubt that Hippocrates could have foreseen what was coming in the future with dictaphones, secretaries, copying machines, insurance companies, Medicare, lawyers, subpoenas and researchers going through patient's records. I doubt that Hippocrates had written notes about his patients much less a secretary to transcribe it. Thus, keeping the Hippocratic oath in his time was relatively easy. Today, it is impossible.

This problem has been made even more complex with a recent court decision that really muddied the water. That is the case of Tatiana Tarasoff. This is a case that occurred in California (where else) in which a patient confided to his psychiatrist that he planned to kill his girlfriend named Tatiana Tarasoff. The psychiatrist did what he could do to dissuade the individual from his planned action but he did not warn Miss Tarasoff of her impending doom. Indeed, the patient subsequently did murder Miss Tarasoff, and her family sued the psychiatrist for failing to warn her of the situation. The psychiatrist cited patient confidentiality in not divulging the information that his patient had shared with him but the court said that he was liable. The court said that doctor patient confidentiality can be superseded by the duty to warn those in danger.

Without getting into nitpicking arguments about this particular decision, it must be recognized that doctor patient confidentiality got a big hole in the boat at this point. Once a rule is no longer a rule and exceptions are allowed, circumstances can distort and the rule is violated.  For instance, what if a husband or a wife finds out that they have AIDS. What if the AIDS-infected person informs the healthcare practitioner that they have no intention of informing their spouse that they have AIDS. What is the healthcare practitioner's duty to the AIDS-infected individual and/or to their spouse?

This question has now been addressed by medical ethicists although not by the courts. According to a group of medical ethicists, healthcare providers have a duty to inform a third party if the danger to that third party is: 1. Serious (such as AIDS or homicide). 2. Very likely to occur (predicting the future is always shaky). 3. The person in danger is clearly identifiable. 4. The likelihood that an intervention can protect the third party. 5. The degree to which the healthcare provider has exhausted other means of avoiding breaching the confidentiality (now we are really shaky). It would be suggested by some medical ethicists at this point that a third party should be warned and that the danger to that individual exceeds the importance of doctor patient confidentiality.

Short of the grotesque considerations above, there is never a reason to breech doctor patient confidentiality. To this time, doctors are still not required to divulge information that might incriminate a patient and certainly never to divulge any information that would compromise the patient's well being. The healthcare provider is forever, the patient's agent, confidante and protector.

A recent study adds information to the way the public thinks about this problem. A large group of people who had an identifiable genetic trait such as a tendency to breast cancer were questioned as to whether or not they felt a healthcare provider should inform family members at risk. For example, if a mother has a breast cancer and a genetic predisposition to same, is it the doctor's duty to inform her daughters of their danger. When the question was asked over 90% of the women said that they felt that it was their own duty to inform their daughters of the genetic tendency. Only 15% of the women felt that it was a doctor's duty to inform the daughters if the mother objected. While a genetic threat for carcinoma of the breast is not quite the same as a death threat from a frustrated lover, the potential life-saving effect of the healthcare provider advising increased surveillance for daughters at risk would seem to carry some additional benefit rather than letting the daughters go without any warning. In spite of explanations to this effect, the ladies that were queried in this study felt more than 5:1 against a healthcare provider becoming meddlesome and informing family members about that genetic risk. They did feel that it was their own duty to do so in 90% of the cases.

To me, this study and several other like it are consistent with my concept of patient confidentiality. Short of an imminent danger to a third part, doctor patient confidentiality is to be maintained without exception. As mentioned above, in today's world of transcriptionists, fax machines, insurance companies, Medicare, and a host of other agents that have access to patients' records, patient confidentiality becomes increasingly difficult to protect. One way that this is done is to not even enter certain items into the patient record when the physician makes his notes.    For certain personal, very sensitive information, the physician or the healthcare provider never writes it down. Medical records should continue essential medical information and all healthcare providers, their agents, their transcriptionists, and anyone who works with the patients in the clinic or hospital are required to observe strict patient confidentiality. Our local clinics are well versed in this concept and strive to maintain patient confidentiality as strictly as can be done.   But according to Hoffsten's First Law; nothing is ever easy.