Both law and ethics recognize the confidential nature of communication between physician and patient. Public policy recognizes the need for a patient to communicate openly with his/her physician to facilitate appropriate diagnosis and effective treatment. This protection is typically extended to any treating medical provider. Under this requirement for confidentiality, healthcare professionals cannot reveal confidential information without the patient's consent. Certain exceptions apply however, such as when a physician suspects child maltreatment and is mandated to report.

Certain communication deemed to be confidential may also be privileged, that is, its disclosure cannot be compelled in court. The privilege is generally limited to information obtained through the actual medical diagnosis and treatment. New York was the first state to enact a statute providing physician-patient privilege. This protection is codified in New York Consolidated Laws, Civil Practice Law and Rules CVR §4504(a) https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-4504/ that states:

Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing...shall not be allowed to disclose any information which [s]he acquired attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity.

Evidentiary privileges are not absolute, and many exceptions apply. Statutory exceptions include mandated child abuse reporting requirements. The Family Court Act of 1962 states that no privilege applies in child abuse and neglect proceedings. According to New York Social Services law §417(1)(b), physicians may also inform child protection and law enforcement authorities that, in their opinion, a child he or she is treating faces imminent danger if the child remains in the care and custody of the parent or guardian. They are also required to disclose related reports, imaging, labs, and photographs.

A significant body of law considers the circumstances where privilege applies. While it is unlikely that as a physician treating a child/adolescent for abuse you could successfully assert privilege in either a criminal or civil proceeding brought on your patient's behalf, it is your ethical obligation to assert privilege of communication on behalf of the patient if you believe it is appropriate. Privileged information can be released upon consent of the patient. In addition, because evidentiary privileges belong to the patient, they can be waived by the patient. For instance, if a patient files a lawsuit against the physician, the privilege is waived. It may also be waived if the patient discloses the information to or in front of a third person or if the patient files a lawsuit against a third-party regarding matters relating to the protected information.

Despite the physician-patient privilege, you should assume that medical records involving cases of child abuse may become available in a criminal and/or civil legal matter. However, do not assume you can and should turn over records to police, attorneys, or others without determining if authorization exists. When contacted by an attorney, determine whether you are authorized to talk to the attorney before releasing information. Keep in mind that any information turned over to one party will likely be turned over to all parties. For more information on releasing information, see: LEGAL ISSUES: Subpoenas below. NEED LINK

Legal Issues