The concept of “doctor-patient confidentiality” derives from English common law and is codified in many states’ statutes. It is based on ethics, not law, and goes at least as far back as the Roman Hippocratic Oath taken by physicians. It is different from “doctor-patient privilege,” which is a legal concept. Both, however, are called upon in legal matters to establish the extent by which ethical duties of confidentiality apply to legal privilege. Legal privilege involves the right to withhold evidence from discovery and/or the right to refrain from disclosing or divulging information gained within the context of a “special relationship.” Special relationships include those between doctors and patients, attorneys and clients, priests and confessors or confiders, guardians and their wards, etc.
The Oath of Hippocrates, traditionally sworn to by newly licensed physicians, includes the promise that “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.” The laws of Hippocrates further provide, “Those things which are sacred, are to be imparted only to sacred persons; and it is not lawful to impart them to the profane until they have been initiated into the mysteries of the science.”
Doctor-patient confidentiality stems from the special relationship created when a prospective patient seeks the advice, care, and/or treatment of a physician. It is based upon the general principle that individuals seeking medical help or advice should not be hindered or inhibited by fear that their medical concerns or conditions will be disclosed to others. Patients entrust personal knowledge of themselves to their physicians, which creates an uneven relationship in that the vulnerability is one-sided. There is generally an expectation that physicians will hold that special knowledge in confidence and use it exclusively for the benefit of the patient.
The professional duty of confidentiality covers not only what patients may reveal to doctors, but also what doctors may independently conclude or form an opinion about, based on their examination or assessment of patients. Confidentiality covers all medical records (including x-rays, lab-reports, etc.) as well as communications between patient and doctor, and it generally includes communications be-tween the patient and other professional staff working with the doctor.
The duty of confidentiality continues even after patients stop seeing or being treated by their doctors. Once doctors are under a duty of confidentiality, they cannot divulge any medical information about their patients to third persons without patient consent. There are, however, exceptions to this rule.