When Privacy is Not an Option: Codifying the Contours of Necessary Third Parties in Emergency Medical Situations

Abstract

While the physician-patient privilege exists in some form in more than forty states, the presence of third parties during the consultation, examination or treatment leads to substantially different results when state courts decide whether the privilege attaches to prevent disclosure. In emergency medical situations, or even non-emergency visits to the emergency room (the primary care for many uninsured people), low-cost clinics, and urgent care offices, the patient rarely has a choice about whether her communication with her physician can be heard by others. With the increasing number of uninsured and underinsured, and the ongoing controversy over comprehensive health insurance reform, a very real problem remains for those who are compelled, whether by cost, or by time, or even by a state of detention, to conduct their medical conversation in the presence of others. This article begins from an affirmation of the deontological approach to the physician-patient privilege in evidence law, recognizing that the right to privacy rationale is the most compelling justification for preventing disclosure of private medical information. When the patient has no opportunity or no ability to dismiss those others, their presence may be considered to be “forced-upon” or compelled as far as that patient is concerned.

How to determine whether a third party is reasonably necessary varies greatly from state to state and the United States Supreme Court is unlikely to resolve these issues. The best (or most likely to be implemented) solution seems to be a judicial approach that expands the concept of presumptions of confidentiality to include situations in which the presence of third parties is compelled, or the exigencies of an ongoing emergency make it difficult, unwise, or impossible to conduct the conversation in private or confidential settings. This article details the parameters of such an approach.

While recognition of a federal physician-patient privilege remains unlikely for the time being, codification of a portion of the privilege, on who preserves confidentiality and who does not, has some precedent in the recently enacted FRE 502 (which is limited to attorney client privilege waiver by disclosure) and this Article provides draft statutory language for consideration.

The privacy interest of the patients is no less when there is an emergency, and is no less when impoverished circumstances or a lack of adequate medical insurance means that medical appointments are conducted in crowded facilities lacking the ability to satisfy a patient’s privacy interests. Patients need certainty in physician-patient communications throughout the nation.

Keywords: patient privilege, evidence, confidence, physician-patient communication, confidentiality, medical emergency