Review and Clarification on the law on “confidentiality between patient and doctor” in a legal context
As part of a significant medical malpractice decision released in Ontario (Bauer v Kilmurry, 2016 ONSC 7749 (CanLII) ) the court discussed important issues regarding physician / patient confidentiality.
The plaintiff, Ms. Bauer, had a medical condition requiring surgery and following that surgery, she suffered a cerebral artery stroke that left her paralysed. The case itself was about whether that surgery was performed negligently and whether negligence led to the stroke and paralyzation.
While the main part of the case discussed the usual components of medical malpractice action (standard of care of a physician and causation), it’s Canada-wide implication arises from a part of the decision that reviews and clarifies the law on “confidentiality between patient and doctor” in a legal context.
While medical professionals reading this might say, “What are you talking about? That’s sacrosanct.” We have seen much confusion over the years. In law, there is “no property in a witness” meaning that either side can seek to speak to anyone who is not a party in the specific case. For example, a lawyer for the defence can phone up a treating practitioner and fairly say “there is no legal reason that you can not speak to me or tell me anything about person X”. There is even a legal process for giving notice before trying to speak to a physician (called a Swirski interview).
This decision helps bring the law back in line with the ethical practices of most medical professionals. It references a 2003 Ontario decision where the plaintiff had committed suicide and the defence obtained a medical report from the plaintiff’s treating psychiatrist without consent and then wanted to use that opinion at the trial. In a complicated decision, the Judge did not allow the defense to do so.
This case reaffirms that physician-patient confidentiality is the clear rule. It repeats that the defence should not be permitted to speak to a plaintiff’s doctor without clear permission from the patient. “Ex parte” or without the consent of the plaintiff discussions should not be allowed. Copying an eloquent American decision it states:
many courts have permitted defense counsel to engage in ex parte conferences with a plaintiff’s treating physician. … We find the reasoning of these decisions, however, to be flawed for they attempt to deal with a question of great societal importance by merely looking to a set of codified rules and procedures for the answer. Indeed, those decisions which permit ex parte conferences fail to acknowledge that a physician is ethically required not to speak to a third party regarding a patient’s confidences absent patient consent. … Moreover, a decision permitting ex parte conferences demonstrates a gross lack of regard for the confidentiality and fiduciary relationship existing between a patient and his physician. … And finally, a decision to allow ex parte conferences neglects to take into account the modern public policy that favours the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to that relationship, ex parte conferences between defense counsel and a plaintiff’s treating physician.
In short, if you have a patient and someone else (anyone else) is asking about them – look first to your college and ethical obligations to that patient, then ask for legal advice that considers your moral and ethical obligations.
Here is the link to the decision. The section dealing with the above issue is found on page 20 (Part 1, section 7).