Chapter 3.B.2.  The Duty to Breach Confidentiality

Notes: Statutory Disclosure Obligations

Note 2.  Types of Disclosure Obligations.

For a discussion of the interaction of state reporting statutes with the state’s request for confidential medical records, see In re Grand Jury Subpoena for Medical Records of Payne, 839 A.2d 837 (N.H. 2004).

Notes:  Common Law Duty to Warn

Note 2.  Categorizing Cases: a General Theory of Liability or a Laundry List.

a. Contagious Diseases

For a case rejecting liability, see McNulty v. City of New York, 792 N.E.2d 162 (N.Y. 2003) (defendant physicians did not owe friend of person infected with meningitis a duty to warn her of the risk of infection).

See also, Kenneth Offit et al., The “Duty to Warn” a Patient’s Family Members About Hereditary Disease Risks, 292 JAMA 1469 (2004).

For a related case, see Nold v. Binyon, 31 P.3d 274 (Kan. 2001) (not purely a duty to warn case; physicians failed to notify pregnant woman of her Hepatitis B status but no breach of confidentiality at issue: court finds physicians have a treatment relationship with pregnant woman along with her fetus).

To review a commentator’s perspective of provider liability in the context of informing third parties of the risk of contracting contagious diseases, see Tracy A. Bateman, Liability of Doctor or Other Health Practitioner to Third Party Contracting Contagious Disease from Doctor’s Patient, 3 A.L.R. (5th) 370 (2005).

b.  Mental Illness

Emerich v. Philadelphia Center for Human Development, Inc., 720 A.2d 1032 (Pa. 1999) (mental health professional has duty to warn third party under certain circumstances; statement that third party should not go to patient’s apartment sufficient to meet duty).

For a discussion of the difference between confidentiality and privilege for a psychotherapist along with a discussion of Guerrier v. State, 811 So. 2d 852 (Fla. 5th DCA 2002), see Phyllis Coleman & Ronald A. Shellow, Warning a Patient’s Intended Victim while Preserving Testimonial Privilege, Fla. B.J., July 2003, Vol. 77, No. 7, at 20 (2003).

The duty to warn can be triggered by receipt of information about the dangerousness of a patient from a family member where the psychotherapist believes that the patient presents a real risk. See Ewing v. Northridge Hosp. Medical Center, 120 Cal. App. 4th 1289 (2nd. 2004) (wrongful death action where the killer was taken to the hospital by his father who then told the psychotherapist that his son was threatening to kill the victim).

c. Driving Impairments

See also, Weigold v. Patel,  81 Conn. App. 347 (2004) (no duty owed to third party injured by patient-driver who had not been informed about risk of driving because third party not identifiable); Burroughs v. Magee, 118 S.W.3d 323 (Tenn. 2003) (physician owed a duty of care to third parties injured by patient who had not been informed of the possible adverse impact of medications on driving ability); Estate of Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999) (no private right of action for ophthalmologist’s failure to notify Dep’t of Transportation of patient’s vision problems).