Right to Privacy


The fundamental right to privacy, guaranteed by the Fifth and Fourteenth Amendments to the U. S. Constitution, protects against unwarranted invasions of privacy by federal or state entities, or arms thereof. As early as in Roe v. Wade, 410 U.S. 113 (1973), the U. S. Supreme Court acknowledged that the doctor-patient relationship is one which evokes constitutional rights of privacy and confidentiality. But even that right is not absolute and must be weighed against the state or federal interest at stake.

For example, in Whalen v. Roe, 429 U.S. 589 (1977), a group of physicians joined patients in a lawsuit challenging the constitutionality of a New York statute that required physicians to report to state authorities the identities of patients receiving Schedule II drugs (controlled substances). The physicians alleged that such information was protected by the doctor-patient confidentiality, while the patients alleged that such disclosure was an invasion of their constitutional right to privacy. The Supreme Court did not disagree with the lower court’s finding that “the intimate nature of a patient’s concern about his bodily ills and the medication he takes—are protected by the constitutional right to privacy.” However, the high court concluded (after balancing the state’s interests) that “Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.”

There are a few key points to remember about the privacy or confidentiality of medical information:

  • Generally, what is considered private is information that is learned or gained by a doctor, during or as a result of a doctor’s communications with patients, or examination of them, or medical assessment of them. The privacy extends to documents and forms, whether completed by them or their health care providers, that are contained in their personal medical records.
  • The scope of the duty of doctor-patient confidentiality, as well as the existence of a doctor-patient legal privilege, varies from state to state. No federal law governs doctor-patient confidentiality or privilege.
  • The duty to maintain the privacy of one’s own medical information continues even after individuals stop seeing or treating with the health care provider.
  • The right to privacy of medical information is not absolute. Doctors may divulge or disclose personal information, against patients’ will, under very limited circumstances. Some exceptions include the duty to warn police or third persons of a patient’s threats of harm, or the duty to report to health authorities the fact of sexually transmitted or communicable diseases, including HIV or AIDS status. In many states, health care providers are required to report treatments of gunshot or stab wounds and suspected incidence of child abuse.