Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 13, 2020

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The expectation of confidentiality in communications between doctor and patient is one of the longest held tenets of the medical profession. The Hippocratic Oath all doctors must swear states, in part, includes:

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

Doctor/patient confidentiality is essential to successful treatment and diagnosis of a patient’s condition. Patients can reasonably expect that communications with a physician be confidential as long as those communications occur during medical treatment. This is a very important distinction, and goes to the root of the difference between doctor-patient confidentiality and a legal privilege.

Doctor-Patient Confidentiality vs. Privilege

In the legal sense, doctor-patient confidentiality does not rise to the level of privilege, as enjoyed by attorneys and clients. This means that in many cases doctors can be compelled to provide private medical information, or can do so voluntarily should a doctor believe disclosure is warranted.

Unlike attorneys and clients, who enjoy a broad, all-encompassing privilege as long as there is an established attorney-client relationship. Medical confidentiality extends only to communications shared during actual medical treatment. For example, an attorney may not divulge marital infidelities to the spouse of a client, whereas a doctor may divulge this information, as long as the doctor did not learn of the infidelity during actual medical treatment of the cheating spouse. 

Furthermore, in some situations such as gun shot wounds, suspected child abuse, intoxication-related accidents, a medical provider may be required by law to divulge a patient’s medical information. There are laws at both the state and federal level that regulate the dissemination of private medical information, chief among them being the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

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The Health Insurance Portability Accountability Act (HIPAA)

HIPAA, a Federal law signed by former President Clinton in 1996, deals with several aspects of health care, but the most common application of HIPAA revolves around the disclosure of medical information to third parties. HIPAA created a set of statutory hoops patients, doctors and third parties need to jump through in order to obtain medical information. 

HIPAA also created statutory requirements regarding doctors’ storage and retention of medical records. While some states have their own laws that impose stricter requirements than those outlined in HIPAA, all doctors and patients can look to HIPAA to get a sense of the degree in which doctor-patient confidentiality is protected.

Waiving Doctor-Patient Confidentiality

Patients can voluntarily choose to waive doctor-patient confidentiality. In fact, in most lawsuits alleging some type of personal injury, patients are required to waive confidentiality to allow the opposing side to review the patient’s medical records. A patient who voluntarily chooses to waive doctor-patient confidentiality generally signs a HIPAA release absolving his or her physician of any liability for the release of confidential medical information, and instructing the physician to whom to provide such information. Additionally, doctors cannot generally claim any type of medical privilege if called to testify at deposition, trial or some other formal hearing.

Violations – Liability & Penalties

If a doctor improperly discloses confidential medical information, that doctor could possibly be subject to civil and/or criminal liability for the disclosure. Depending upon the law of a particular jurisdiction, the disclosure of confidential medical information could be considered malpractice. While HIPAA and other federal and state laws often provide for fines and/or criminal sanctions in the case of confidentiality breaches, medical providers can also be sued under theories of general negligence or medical malpractice. This is, and will continue to be, a controversial topic among legal scholars, as there are diverging opinions as to whether improper release of information rises to the level of actual improper care. 

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Contact a Professional if You Suspect Violation

Doctor-patient confidentiality is customary and can be reasonably expected in health treatment. However, be aware that doctor-patient confidentiality does not automatically confer a legal privilege. If you believe a medical provider has improperly disclosed confidential information, contact a local attorney to assess your potential remedies.