Malpractice Consult

Q:I'm a recovering alcoholic and haven't had a drink in five years.My problem never affected my clinical care. But now, a patient who had apoor result has learned of my alcoholism and is claiming that I had a dutyto tell him. He says that if he'd known about it, he would have chosen anotherphysician. Am I required to disclose irrelevant information from my past?

A:The key words in your question are "irrelevant" and "past."If your drinking is truly in the past and has no impact on the care yourender today, you don't need to disclose it to the patient.

The situation would be different if an alcohol or drug problem were morerecent or ongoing. Courts have held that there is an obligation to disclosesuch information to patients.

In a Louisiana case, an orthopedist was sued after a laminectomy leftthe patient without bowel and bladder control. The patient claimed he wasnever warned of those risks, nor of the physician's alcohol abuse aroundthe date of surgery.

A jury awarded the patient $307,000. An appeals court upheld the awardand found that the doctor's failure to tell the patient about his alcoholabuse breached the intent of the informed consent statute.

In a Georgia case, a patient charged that his urologist had misdiagnosedpenile cancer and performed unnecessary surgery that left him unable toengage in sexual intercourse. The urologist had concealed his ongoing cocaineuse, though he denied that it impaired his performance as a physician.

A jury found that the doctor and his clinic weren't medically negligentbut had committed fraud and misrepresentation. The patient was awarded almost$800,000.

The trial judge threw out the verdict, ruling that the doctor had noobligation to disclose the fact that he was an occasional cocaine user.An appeals court reinstated the award, declaring that physicians and patientsshare a confidential relationship. "Where a confidential relationshipexists," the court ruled, "a person's silence when he should speak,or his failure to disclose what he ought to disclose, is as much a fraudin law as an actual affirmative false representation."

What's your legal obligation if you're making a referral to someone who'shad substance abuse problems? If the problems are in the past, or if he'sbeing monitored in a medical society program, you probably don't need toreveal this to the patient. However, if you're aware that the specialisthas an ongoing problem, you could be liable for negligent referral.

Confidentiality for patients who use illegal drugs

Q:I was covering the emergency room when I found illegal drugs undera patient's pillow. Am I required to report this to the police?

A:In general, doctor-patient relations are confidential. Still, somestates have mandatory reporting requirements, and you may be obliged tocall the police. Check with your medical society or the hospital attorney.

As a clinician, your first question should be, "Has the patientingested these drugs, and will they affect his condition?" If you suspecta drug overdose or some interaction with treatment, you must have the drugsidentified by the pharmacy, and ask the patient if he's taken them.

Information learned during the course of treatment that is material tothat treatment is protected by confidentiality statutes on the doctor-patientprivilege. Disclosure of such information could be construed as a breachof the patient's privacy. If the patient came in seeking treatment for drugabuse, the information you learn from him is privileged and shouldn't bedivulged without a court order.

On the other hand, if the patient is being treated for trauma after acar accident and some drugs fall out of his pocket, there's no confidentialityrequirement.

In many states, criminal investigations take legal priority over patientconfidentiality. If reporting of drug violations is required in your state,send a written account to the appropriate state agency. Ask the agency whatto do with the drugs, and lock them away until you receive a response.

Lee Johnson. Malpractice Consult. Medical Economics 1999;18:168.