unit 3- confidentiality and physician-patient privilege

Unit 3- Confidentiality and Physician-Patient Privilege

Biddle v. Warren Gen. Hospital 86 Ohio St. 3d 395 (1995)

• Identify issue(s)



• Holding



• Holding

• Reasoning

Let’s Discuss

• What harms were the plaintiffs exposed to by the disclosure of their medical records?

• Wouldn’t this practice actually provide a benefit to those patients identified as having claims?

• What ethical issues, if any, are raised in this case?

Practice Question 1:

An injured man is goes to see a doctor right after a car accident. The doctor conducts an interview which includes a history of past drug use and the patient, reluctantly, admits past use because – as it turns out – he’s in his own home and the physician is his mother.

Patient/client privilege exist?

Answer Question 1:

• Yes, privileged. A treating or examining physician is incompetent to testify as to matters about which he/she gained knowledge through the physician-patient relationship, even though the physician is a relative of the patient who treats without compensation.


After acting in a way that neighbors described as “disruptive and irrational”, a physician examines a woman as part of the judicial involuntary commitment procedure.

Is the physician subsequently restricted form giving testimony by the physician-client privilege?

Answer Question 2:

• No. The physician merely examines the individual, and the privileged relationship does not result when the physician does not seek to advise or treat, and there was no voluntary medical consultation.

Practice Question 3: Avery is extremely embarrassed about the fact that – though his

wife is perfectly healthy – he contracted a sexually transmitted disease. To add insult to injury the doctor appears to have erroneously prescribed medicine that irritates his condition rather than soothes. He’s so mad he’s decided to pursue a malpractice claim and he’s so glad that the physician-patient privilege will prohibit the physician from disclosing the actual nature of the problem for which Avery sought treatment.

Does Avery have even more reason to worry?

Answer Question 3:

• Yes, Avery should worry. A patient waives any privilege to preclude a physician’s disclosure of their confidential communications by filing a malpractice case against the physician.


Barbara has nosy friends, and she expects that at some point in her lengthy trial it’s going to come out that she was receiving mental therapy. In an effort to minimize the damage she admits while she’s on the stand initially that she had been depressed and was treated by a psychiatrist, but is careful not to go into too much detail.

Good move strategically?

Answer Question 4:

• Not so much. A patient waives the privilege against disclosure of her psychiatrist’s diagnosis when she voluntarily testifies about her depressed condition and the treatment she received for that condition.


Max was subpoenaed to the deposition and doesn’t have any choice. The obnoxious lawyer asks him about his sensitive medical condition, he’s under oath, and he has to tell the truth. He admits it.

Oh great! Now he’s impliedly waived the privilege, they’re going to take his doctor’s deposition and with all the publicity this case is getting most of his medical history details are going to be front-page news.

Any silver lining for Max?

Answer Question 5:

• Yes. There is no voluntary testimony that causes a waiver when the patient testifies at the instance of the adverse party at a deposition, or at trial.

Practice Question 6: What about the following forms – Might they result in waiver of the

physician-client privilege?

1 – Terms of a life insurance application?

2 – Form describing medical information provided to a patient’s employer?

3 – A form authorizing any physician to give medical records to “bearer”, though it wasn’t really intended to be used by opposing counsel?

Answer Question 6:

• Yes. • Yes. • And yes.

Be careful with forms (or at least be aware!)

Quality Assurance and Peer Review

• What is it, and what’s involved?

(And what it’s not…)

Quality Assurance and Peer Review

• What is it, and what’s involved?

(And what it’s not…)

• Considerations with respect to the physician/patient privilege and confidentiality

Short Paper 1: Investigation Plan• Using the Medical Malpractice Case Scenario, create an

Investigation Plan. If you took Civil Litigation with Kaplan, you can use the investigative plan you formulated there as a reference, keeping in mind that the more details the Investigation contains, the more useful the plan will be. Samples of investigative plans can also be found in the Doc Sharing area.

• Your paper should include a title page. The body of the paper should be at least two to three double spaced pages in length. This paper counts for five percent of your total grade.

• Create your Investigation Plan in a Word document. Save it in a location with a name that you will remember.

Short Paper 1: Investigation Plan …cont’d

• Make sure that your Investigation Plan is: • (1) 2 – 3 pages in length; • (2) Double-spaced and in a 12-point font;• (3) Well-written and grammatically correct; • (4) Organized in a logical fashion that makes it easy to

follow and understand; • (5) Cited properly.

Short Paper 1: Investigation Plan …cont’d

• The viewpoint and purpose of this 2 – 3 page assignment should be clearly established and sustained. The assignment should follow the conventions of Standard American English (correct grammar, punctuation, etc.). Your writing should be well ordered, logical and unified, as well as original and insightful. Your work should display superior content, organization, style, and mechanics. Use the appropriate citation style for all citations. More details can be found in the GEL 1.1 Universal Writing Rubric.

unit 3- confidentiality and physician-patient privilege

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