The Physician’s Ethical Duty to


Protect the Confidential Nature of the Physician/Patient Relationship and Refrain From Providing Affirmative Assistance to His Patient’s Adversaries


The Code of Ethics for the medical profession is comprised of three separate “prongs”: (1) the Hippocratic Oath; (2) the American Medical Association’s (AMA) Principles of Medical Ethics; and (3) the Current Opinions of the AMA’s Council on Ethical and Judicial Affairs. These three “prongs” underscore the highly confidential nature of the physi- cian/patient relationship and, perhaps more importantly, affirmatively advertise to the public that a patient can properly expect his physician to protect those medi- cal confidences which are disclosed during the physician/patient relationship. Petrillo v. Syntex Laboratories, Inc., 499 N.E.2d 952, 957, 148 Ill. App.3rd 581 (1986). The Hippocratic Oath was conceived in the 5th century, B.C., and is the oldest statement of ethics governing the medi- cal profession. The Oath states:


Whatever, in connection with my professional practice or not in con- nection with it, I see or hear, in the life of men, which ought not be spoken abroad, I will not divulge, as reckoning that all such should be kept secret.


Petrillo v. Syntex Laboratories, Inc, 499 N.E.2d at 957-958. Principle II of the AMA’s Principles of


Medical Ethics states: that “a physician shall deal honestly with his patients and colleagues. . . .” Principle IV states:


“a


physician shall respect the rights of pa- tients, of colleagues, and of other health care professionals, and shall safeguard pa- tient confidences within the constraints of law.”10 The Current Opinions of AMA’s Coun-


cil on Ethical and Judicial Affairs provide the most detailed description of the physician’s duty to the patient and sup- port for the proposition that cooperation with the patient’s adversaries is ethically prohibited. According to the AMA’s Council on Ethical and Judicial Affairs, the fundamental elements of the patient/ physician relationship comprise an over- all “alliance” between the patient and physician designed to bring the greatest benefit to the patient. “Physicians can


10


American Medical Association, Principles of Medical Ethics, Preamble (1995, 2000).


Summer 2002


best contribute to this alliance by serving as their patient’s advocate and by foster- ing [the patient’s] rights,” including, the right of confidentiality.


“The physician


should not reveal confidential communi- cation or information without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or the public interest.”11 Section 5.05 of the Current Opinions of the Council on Ethical and Judicial Af- fairs states:


The information disclosed to a phy- sician during the course of the relationship between physician and patient is confidential to the great- est possible degree.


The patient


should feel free to make a full dis- closure of information to the physician in order that the physi- cian may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physi- cian should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.


The obligation to safeguard pa- tient confidences is subject to certain exceptions which are ethi- cally and legally justified because of overriding social considerations. Where a patient threatens to inflict serious bodily harm to another per- son or to him or herself and there is reasonable probability that the patient may carry out the threat, the physician should take reasonable precautions for the protection of the intended victim, including no- tification of law enforcement authorities. Also, communicable diseases, gun shot and knife wounds should be reported as required by applicable statutes or ordinances.12


Notable is the absence from Section 5.05 of any exception to the physician’s obligation of confidentiality for purposes of civil litigation. Clearly, the physician’s ethical responsibility to safeguard patient


11


American Medical Association, Fundamen- tal Elements of the Patient- Physician Relation- ship (1995, 1999).


12


American Medical Association, Current Opinions of the Council on Ethical and Judi- cial Affairs, Section 5.05. (Issued December, 1983; updated June, 1994).


Trial Reporter 13


confidences is of such great import that it is only in cases of impending physical harm that the obligation is excused. Section 5.06 of the Current Opinions of the Council on Ethical and Judicial Af- fairs states:


The patient’s history, diagnosis, treatment and prognosis may be discussed with the patient’s lawyer with the consent of the patient or the patient’s lawful representative. A physician may testify in court


or before a Worker’s Compensation Board or the like in a personal in- jury or related case.13


Section 5.06 stands for the proposi- tion that the patient’s history, diagnosis, treatment and prognosis comprise part and parcel of the confidential information that must be safeguarded by the physi- cian as part of his duty of total care to the patient. In other words, not only are spo- ken confidences imparted by the patient to the physician subject to the duty of confidentiality, but also the physician’s thought processes and conclusions as well. This is a compelling counterpoint to the argument that the physician’s duty of confidentiality extends only to those spo- ken confidences imparted by the patient. Perhaps more importantly, Section 5.06 establishes that a physician should not discuss the patient’s history, diagno- sis, treatment and prognosis with the patient’s own lawyer without the patient’s express consent. If such express consent is required before the physician can dis- cuss the patient’s medical details with the patient’s own representative, how can it reasonably be argued that a physician can, without his patient’s consent, ethically engage in ex parte discussions with the patient’s legal adversaries? Section 5.08 of the Current Opinions of the Council on Ethical and Judicial Af- fairs, states that:


History, diagnosis, prognosis, and the like acquired during the physi- cian/patient relationship may be disclosed to an insurance company representative only if the patient or a lawful representative of the pa- tient has consented to the disclosure. A physician’s responsi-


(Continued on page 8)


American Medical Association, Current Opinions of the Council on Ethical and Judi- cial Affairs, Section 5.06. (Issued prior to April, 1977).


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