What’s Wrong with Health Privacy?
Indiana University Robert H. McKinney School of Law
May 19, 2009
Journal of Health & Biomedical Law, Vol. V, pp. 1-32, 2009
Saint Louis U. Legal Studies Research Paper No. 2009-04
This article seeks to identify some of the reasons why “privacy” remains so contentious. Here I suggest several possible answers ranging from “micro” issues such as what we understand by health privacy to more “macro” and operational issues as we seek to protect health information. First, lawyers have made consistent errors in the terminology applied to the protection of medical privacy; second, both the legal and ethical domains have failed to apply a consistent and robust rationale for health privacy, leaving it prey to consequentialist thought and policy; third, the declining importance of the physician-patient relationship as the touchstone for obligations, particularly confidentiality, has created a “rights” vacuum; fourth, the health information revolution truly is revolutionary in its reach and its concomitant threats to privacy and confidentiality; and, finally, as privacy regulation increasingly lies in the sphere of governmental command-control regulation, it has joined the list of targets in the professionalism-market-regulation conflict over millennial healthcare delivery.
Number of Pages in PDF File: 33Accepted Paper Series
Date posted: May 23, 2009 ; Last revised: February 20, 2012
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