Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

When a spouse asks about your patient

Q: Some of my foreign-born female patients insist that their husbands accompany them into the exam room. Often the husbands are even the ones who make the appointments and answer questions for their wives—all with their wives' apparent consent. Can I be sued for violating confidentiality if I reveal information to a husband that his wife doesn't want him to know?

A: Nothing can prevent a patient from suing, but, in this scenario, you'd probably win. It appears that the patient has waived her right to confidentiality. To better protect yourself, however, check with the patient to make sure it's okay if her husband accompanies her into the exam room. If your care involves a sensitive topic, such as an STD, ask the patient again if she wants her husband to be present.

Make sure to explain the confidentiality of the doctor-patient relationship, and ask the patient specifically whether she wants to waive the privilege. Document the discussion and your patient's consent in your progress notes. You may also want to ask the patient to initial your progress note, or to sign a consent form.

But even without that documentation, there may be an implied consent. That was the ruling of a Pennsylvania appellate court in a recent case involving a woman who objected that her husband was told that she might have herpes.

The Syrian-born couple sought treatment because of the wife's complaints of pain during intercourse. The husband made the appointment and was present during the pelvic exam. The doctor took cultures and told the patient and husband that he would discuss the results when they came back. The husband persisted in questioning the doctor during the visit and by phone afterwards. After the test results were in, the physician informed the husband during one of the phone calls that he suspected herpes, although the tests were equivocal. He said that the wife should be retested when lesions reappeared.

Revealing that information had a devastating impact on the woman's life. Her husband and in-laws became physically and emotionally abusive to her. She sought refuge at a women's shelter and worried that she would lose custody of her young child.

She sued the doctor for breach of confidentiality, intentional infliction of emotional distress, and tortious interference with the marital relationship. A jury found for the physician, and she appealed the verdict.

The appeals court found that the patient's conduct resulted in an implied consent to disclose confidential information. "The facts presented at trial established that (the) husband made all the appointments . . . but, more importantly, that he was present for her gynecological examinations. [The wife] made no efforts to exclude him from the examinations or the discussions about her diagnosis and treatment. [She] gave implied consent to have her medical information released to her husband."

Despite this Pennsylvania ruling, it's still best to make the patient's consent explicit, rather than implied; documented rather than testified to later; and specific as to treatment, time, and person, rather than global, vague, or indefinite. Another court might see the facts differently.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;13:99.