60 Chapter 7—Ethical and Legal Responsibilities of the Physician
Portability and Accountability Act of
1996, or HIPAA.
139
Patient condenti-
ality is dened as the physician’s ethical
obligation to keep information about
the patient and his/her care unavailable
to those—including the patient’s family,
the patient’s attorney, and the government
—who do not have the authorization to
receive or review this information.
140,141
Patient condentiality is crucial within
the physician-patient relationship
because it encourages the free exchange
of information, allowing the patient to
describe symptoms for diagnosis and
treatment.
142
Without belief in the
patient condentiality of their care,
individuals may be less likely to seek
treatment, disclose information for
effective treatment, or trust the health
care professional.
143
The need for patient condentiality
cannot be considered absolute; a
patient is entitled to freely disclose his
or her symptoms and condition to his
or her physician in condence except
where the public interest or the private
interest of the patient so demands, and
thus a patient possesses a limited right
to patient condentiality in extra-
judicial disclosures subject to exceptions
prompted by the supervening interest of
society.
144
Thus, patient condentiality
does not necessarily protect the physi-
139. Health Insurance Portability and Accountability
Act of 1996 (HIPAA), Public Law 104-191.
45 C.F.R.§ 164.512(a)—Uses and Disclosures
Required by Law (2000). Federal Register / Vol.
65, No. 250 / Thursday, December 28, 2000 /
Rules and Regulations; page 82811. Available
at www.hhs.gov/ocr/privacy/hipaa/administrative/
privacyrule/prdecember2000all8parts.pdf
140. Justice J. Patient condentiality and pharmacy
practice. Consult Pharmacist. 1997:12(11).
Available at: www.ascp.com/public/pubs/tcp/1997/
nov/patient.html.
141. Tasman A, Kay J, Lieberman JA, Fletcher J
(eds). Psychiatry, 1st ed. Philadelphia: W.B.
Saunders Company; 1997: p. 1808.
142. Retchin SM, Anapolle J. An overview of the
older driver. Clin Geriatr Med. 1993;9(2):279-
296.
143. Ferguson v. City of Charleston, 532 US 67
(deliberating in a South Carolina court case
the benets and risks of physician disclosing
condential patient information when that
condential information may protect patients
and society from possible harm).
144. Tasman A, Kay J, Lieberman JA, & Fletcher
J (eds). (1997). Psychiatry, 1st ed. P. 1808.
Philadelphia: W. B. Saunders Company.
states, physicians have been found
liable for third-party injuries because
they failed to advise their patients
about medication side effects,
136
medical
conditions,
137
and medical devices
138
that may impair driving performance
thus causing harm to those other than
the patient.
Maintaining patient
confidentiality
Patient condentiality is the right of an
individual to have personal, identi-
able medical information kept private;
these protections are enumerated in the
federal statute, the Health Insurance
136. Gooden v. Tips, 651 SW 2d; 364. Kaiser v.
Suburban Transportation System, 65 Wn. 2d
461, 398 P.2d 14 (stating in this Washington
state case, that a physician could be held liable
due to the fact that a patient took medication
completely unaware that it would have any
adverse effect on him because the physician
failed to warn his patient, whom he knew to
be a bus driver, of the dangerous side effects of
drowsiness or lassitude that may be caused by
taking this particular medication).
137. Caldwell v. Hassan, 260 Kan. 769 (nding in a
Kansas court case that that the doctor had no
duty to protect bicyclists - a third party- from
his patient’s actions because the patient who
had a sleep disorder was aware of the problem
and admitted to knowing that she should have
stopped driving).
Duvall v. Goldin, 362 NW 2d 275 (nding
in a Michigan court case that the physician
was liable to third persons injured as it was
foreseeable that a doctor’s failure to diagnose or
properly treat an epileptic condition could have
created a risk of harm to a third party and that
as a result of the patient’s medical condition,
caused an automobile accident involving the
third persons).
Myers v. Quesenberry, 144 Cal App 3d 888,
(nding in a California court case that if a
physician knows or should know a patient’s
condition will impair the patient’s mental
faculties and motor coordination, a comparable
warning is appropriate).
Schuster v. Alternberg, 424 NW 2d 159 (nding
in a Wisconsin court case that if it was
ultimately proven that it could have been
foreseeable to a psychiatrist, exercising due care,
that by failing to warn a third person or failing
to take action to institute detention or commit-
ment proceedings someone would be harmed,
negligence could be established).
138. Joy v. Eastern Maine Medical Center, 529 A2d
1364 (nding in a Maine court case that when
the doctor knew, or reasonably should have
known that his patient’s ability to drive has been
affected by treatment that the doctor provided,
he had a duty to the driving public as well as to
the patient to warn his patient of that fact).
providers who do not comply with
their legal requirement to report may
be convicted of a summary criminal
offense”.
132
Some cases illustrate that a
physician’s failure to advise the patient
about such medical conditions and
medication side effects can be considered
negligent behavior.
133
The Public
In addition to caring for their patients’
health, physicians may, in certain
circumstances and jurisdictions, have
some responsibility for protecting the
safety of the public.
134,135
In certain
132. Title 75 PA. CODE § 1518(b) The Vehicle
Code (stating physicians are immune from
any civil or criminal liability if they do report
patients 15 years of age or older who have been
diagnosed as having a condition that could
impair his/her ability to safely operate a motor
vehicle; but, if the physician does not report
could, then, possibly be held responsible as a
proximate cause of an accident resulting in
death, injury, or property loss caused by the
physician’s patient. Also, physicians who do
not comply with their legal requirement to
report may be convicted of a summary criminal
offense). Available at www.dmv.state.pa.us/
pdotforms/fact_sheets/fs-pub7212.pdf
133. Gooden v. Tips, 651 SW 2d 364 (stating in a
Texas court case that physicians have a duty
to warn patients that medications may impair
driving but that physicians do not have a duty
to control a patient’s behavior).
Wilschinsky v. Medina, 108 NM 511 (stating in
a New Mexico court case the physician owed
a duty of care to an individual harmed by the
physician’s patient, that the patient’s doctor’s
duty specically extended to persons the patient
injured by driving a car from the doctor’s ofce
after being injected with drugs that were known
to affect judgment and driving ability; the
medical standards for administering drugs had to
dene the physician’s duties of care).
134. Tarasoff v. Regents of University of California, 13
Cal. 3d 177. It should be noted that the Tarasoff
ruling per se, upon which the principles of
‘Duty to Warn’ and ‘Duty to Protect’ are based,
originally applied only in the state of California
and now applies only in certain jurisdictions.
The U.S. Supreme Court has not heard a case
involving these principles. Many states have
adopted statutes to help clarify steps that are
considered reasonable when a physician is pre-
sented with someone making a threat of harm to
a third party. Tasman A, Kay J, Lieberman JA,
Fletcher J (eds). Psychiatry, 1st ed. Philadelphia:
W.B. Saunders Company; 1997: p. 1815
135. Brisbine, supra, 2002 PA Super 138, *; 799 A.2d
89 (dening factors applied in a Pennsylvania
court case in determining the existence of a
duty: (1) the relationship between the parties;
(2) the social utility of the actor’s conduct; (3)
the nature of the risk imposed and foreseeability
of the harm incurred; (4) the consequences of
imposing a duty upon the actor; (5) the overall
public interest in the proposed solution).