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LEGAL ISSUES: Confidential and Privileged Communication

Both law and ethics recognize the confidential nature of communication between physician and patient. Public policy recognizes the need for a patient to be free to communicate openly with his/her physician in order to promote effective treatment. This protection is typically extended to any treating medical provider. Under this requirement for confidentiality certain professionals, including physicians, cannot reveal confidential information without patient consent. Certain exceptions apply however, such as when a physician suspects child abuse and is mandated to report.

Certain communication deemed to be confidential is also privileged, that is its disclosure cannot be compelled in court. The privilege is generally limited to information obtained through the actual medical diagnosis and treatment. New York was the first state to enact a statute providing physician-patient privilege. This protection is codified in CPLR ~ 4504(a) that states:

    Unless the patient waives the privilege a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing...shall not be allowed to disclose any information which [s]he acquired attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity.

Evidentiary privileges are not absolute and many exceptions apply. Statutory exceptions include mandated child abuse reporting requirements. The Family Court Act states that no privilege applies in child abuse and neglect proceedings. According to New York Social Services Law, physicians may also inform child protection and law enforcement authorities that, in the opinion of the physician, a child he or she is treating faces imminent danger if the child remains in the care and custody of the parent or guardian. They are also required to disclose reports, X-rays, and photographs with regard to a report.

A significant body of law considers the circumstances where privilege applies. While it is unlikely that as a physician treating a child/adolescent for abuse you could successfully assert privilege in either a criminal or civil proceeding brought on your patient's behalf, it is your ethical obligation to assert privilege on behalf of the patient if you believe it is appropriate. Privileged information can be released upon consent of the patient. In addition, because evidentiary privileges belong to the patient, they can be waived by the patient. For instance, if a patient files a lawsuit against the physician, the privilege is waived. It may also be waived if the patient discloses the information to or in front of a third person. It may also be waived if the patient files a lawsuit against a third party regarding matters directly relating to the protected information.

Despite the physician-patient privilege, you should assume that medical records involving cases of child abuse will become available in a criminal or civil legal matter. However, do not assume you can and should turn over records to police, attorneys, or others without determining if authorization exists. When contacted by an attorney, determine whether you are authorized to talk to the attorney before releasing information. Keep in mind that any information turned over to one party will be turned over to all parties. For more information on releasing information, see LEGAL ISSUES: Subpoenas.

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Legal Issues: Overview  Legal Issues: Consent by Mature or Emancipated Minors  Legal Issues: Protective Custody  Legal Issues: Medical Records  Legal Issues: Confidential and Privileged Communication  Legal Issues: Subpoenas  Legal Issues: Judicial System  Legal Issues: Testifying as a Fact Witness   Legal Issues: Testifying as an Expert  Legal Issues: Testifying in Court  Legal Issues: Additional Resources 

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