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Published online by Cambridge University Press: 06 May 2021
This Article explores the constitutional, statutory and common law privacy rights of physicians given the inescapable role of delivery data under supply side competition. The Article begins with a general review of the federal constitutional right of privacy. It then discusses the statutory protection given to physician-specific data under current federal law, and considers the insights gained from the controversy over physician data and the federal Freedom of Information Act. The remainder of the Article analyzes the usefulness of several common law causes of action to remedy the misuse of physician data, and concludes with recommendations which may obviate the need for litigation to protect against misuse of physician-specific data.
1 See Iglehart, Special Report: Drawing the Lines for the Debate on Competition, 305 New Eng. J. Med. 291 (1981)Google Scholar.
2 Id. at 292-96; Enthoven, Consumer Choice Health Plan (pts. 1-2), 298 New Eng. J. Med. 650, 709 (1978)CrossRefGoogle Scholar; Enthoven, The Competition Strategy: Status and Prospects, 304 New Eng. J. Med. 109 (1981)Google Scholar; Havighurst, Health Care Cost-Containment, Regulation: Prospects and an Alternative, 3 Am. J.L. & Med. 309 (1978)Google Scholar; Weiner, Governmental Regulation of Health Care: A Response to Some Criticisms Voiced by Proponents of a Free Market, 4 Am. J.L. & Med. 15 (1978)Google Scholar; Havighurst, More on Regulation: A Reply to Stephen Weiner, 4 Am. J.L. & Med. 243 (1978)Google Scholar.
3 Enthoven, The Competition Strategy: Status & Prospects, supra note 2, at 109. Health and Human Services [hereinafter HHS] Secretary Richard S. Schweiker recently appointed internal and external advisory committees to consider and recommend a pro-competitive legislation program. Iglehart, supra note 1, at 292. Members of the departmental task force include Dr. Robert Rubin, the Acting Assistant for Planning and Evaluation, Dr. Edward Brandt, Assistant Secretary for Health, Dr. C. Everett Koop, Deputy Assistant Secretary for Health, Alair Townscnd, Acting Assistant Secretary for Management and Budget, Carolyne Davis, administrator of the Health Care Financing Administration, Acting General Counsel Juan del Real, Linda Jenckes, Deputy Secretary for Legislation and Health, and Dan Bourque, Deputy Executive Secretary. Schweiker has also asked former HHS transition officer David Winston to set up a private task force to advise the Rubin group. Schweiker asked for a preliminary report on the task force's work by July 1, 1981. McGraw-Hill Newsletter: Medicine & Health (May 1981).
4 See generally R. Leftwich, The Price System and Resource Allocation (3d ed. 1966).
5 The complexities include the question of discovery in litigation, the extent of the physician-patient privilege, and the tradition of professional secrecy that only recently has been breached. See Note, Medical Peer Review Protection in the Health Care Industry, 52 Temp. L.Q. 552, 565-75 (1979)Google Scholar.
6 Stanford University Professor Alain C. Enthoven has identified the disclosure of information as essential to meaningful competition. A. Enthoven, Health Plan: The Only Practical Solution to the'Soaring Cost of Medical Care (1980).
7 H.R. 850, 97th Cong., 1st Sess., 127 Cong. Rec. H116 (daily ed. Jan. 16, 1981); S. 139, 97th Cong., 1st Sess., 127 Cong. Rec. S179 (daily ed. Jan. 15, 1981); S.433, 97th Cong., 1st Sess., 127 Cong. Rec. Sl,019 (daily ed. Feb. 5, 1981); H.R. 7527, 96th Cong., 2d Sess., 126 Cong. Rec. H4.683 (daily ed. June 9, 1980); H.R. 7528, 96th Cong., 2d Sess., 126 Cong. REC H4.683 (daily ed. June 9, 1980); H.R. 6405, 96th Cong., 2d Sess., 126 Cong. Rec. H532 (daily ed. Feb. 4, 1980); S. 1968, 96th Cong., 1st Sess., 125 Cong. Rec. S15.699 (daily ed. Nov. 1, 1979); S. 1590, 96th Cong., 1st Sess., 125 Cong. Rec. S10.656 (daily ed. July 26, 1979); H.R. 5740, 96th Cong., 1st Sess., 125 Cong. Rec. H9.970 (daily ed. Oct. 30, 1979).
8 H.R. 850, 97th Cong., 1st Sess. 104, 105, 106, 127 Cong. Rec H116 (daily ed. Jan. 16, 1981); S. 1590, 96th Cong., 1st Sess. 201, 202, 125 Cong. Rec. S10.656 (daily ed. July 26, 1979).
9 H.R. 850, 97th Cong., 1st Sess., 102, 103, 12(a), 12(b), 127 Cong. Rec. H116 (daily ed. Jan. 16, 1981); S. 1590, 96th Cong., 1st Sess. 101, 201, 301, 401, 125 Cong. Rec. S10.656 (daily ed. July 26, 1979).
10 A. Enthoven, supra note 6.
11 Iglehart, supra note 1, at 293.
12 The Washington Business Group on Health, whose members include nearly one-half of the 500 largest American corporations, testified against amendments to the Health Maintenance Organization Act that required a multiple choice of plans. Iglehart, supra note 1, at 295. The AFL-CIO is also a strident critic of the competition model. See Professional Standards Review Organization Program: Hearings on H.R. 117 Before Subcomm. on Health and Environment, 96th Cong., 2d Sess. (1980).
13 42 U.S.C. 300e-9 (Supp. 1981).
14 Vertical integration describes a commercial structure that embraces different stages of the development of a product. Examples include the structure of many steel companies that mine iron ore, coal and limestone, transport these minerals to company-owned mills in company-owned vehicles and cast and roll the molten steel into particular products.
Vertical integration in the health care industry has only occurred within health maintenance organizations [HMOs]. Elsewhere in the industry, the financing function (insurance companies and government agencies), the delivery function (hospitals), and the worker function (primary and preelementary physicians) are separate business activities.
Under the Stockman-Gephardt bill, insurers could, and presumably would, limit the places of delivery and identity of delivering workers depending upon their ability to negotiate rates which they believe to be competitive and their recognition that permitting their plans members to visit several hospitals, rather than one, would achieve adequate usage rates. Thus, insurers are likely to engage in coverage of delivery at some hospitalsa step toward integration of function if not ownership. See H.R. 850, 97th Cong., 1st Sess., 5(22), 5(29), 208(A)(a)(ii), 127 Cong. Rec. H116 (daily ed. Jan. 16, 1981).
15 H.R. 850, 97th Cong., 1st Sess., 204 (premium of qualified plan), 202 (minimum benefit levels), 205, 207 (information disclosure), 302 (federal preemption), 127 Cong.. Rec. H116 (daily ed. Jan. 16, 1981); S. 1590, 96th Cong., 1st Sess. 201 (premium structure and minimum benefit levels), 12 Cong. Rec. S10.656 (daily ed. July 26, 1979).
16 Havighurst & Hackbarth, Competition and Health Care: Planning for Deregulation, 1980 Regulation 39 (May/June 1980). The techniques necessary to insure the adequacy of benefit levels and other requirements of consumer protection may give rise to a procompetitive regulatory program almost as complex as the current federal/state command and control system. Most of these problems are old for a reason. We have not yet been able to achieve sufficient consensus on a single solution or group of solutions to permit legislation implementing them. Caper, Competition and Health CareCaveat Emptor, 304 New Eng. J. Med. 1296, 1298 (1981)Google Scholar; see also Gifford, & Anlyan, The Role of the Private Sector in an Economy of Limited Health Care Resources, 300 New Eng. J. Med. 790 (1979)Google Scholar (conventional patterns of economic thought may not be fully descriptive, even by analogy, of the behavior of consumers and providers in the medical marketplace).
17 See e.g., Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, 440 F. Supp. 937 (D.D.C. 1978).
18 Employer contribution has increased corporate interest in cost-efficient health care benefit plans. Egdahl, Physicians and the Containment of Health Care Costs, 304 New Eng. J. Med. 900, 901 (1981)Google Scholar.
19 Moran, HMOs, Competition and the Politics of Minimum Benefits, 59 Milbank Mem. Fund Q.: Health & Soc'y 190, 192 (1981)Google Scholar (explicit investment and utilization controls by vertically integrated providers generally will be most successful); Weiner, On Public Values & Private Regulation: Some Reflections on Cost Containment Strategies, 59 Milbank Mem. Fund Q.: Health & Soc'y 269, 285-86 (1981)Google Scholar (value of public access to information is important to informed consumers).
20 Eisenberg, Williams, Garner, Viale, & Smits, Computer-Based Audit to Detect and Correct Overutilization of Laboratory Tests, 15 Med. Care 915 (1977)Google Scholar.
21 See generally Stern, Medical Information Bureau: The Life Insurers Data-bank, 4 Rutgers J. Computers & L. 1 (1974)Google Scholar; Boyer, Computerized Medical Records and the Right to Privacy: The Emerging Federal Response, 25 Buffalo L. Rev. 37, 52-61 (1975)Google Scholar.
22 The application of physician-specific data to the clinical setting includes such techniques as regular comparison of a physician's delivery norms to those of his peers, Schroeder, Renders, Cooper & Piemme, Use of Laboratory Tests and Pharmaceuticals: Variations Among Physicians and Effect of Cost Audit on Subsequent Use, 225 J.A.M.A. 969 (1973), and use of monetary incentives to change physician behavior in the delivery of care and the typical concurrent chart review, Martin, Wolf, Thibodeau, Dzau & Braunwald, A Trial of Two Strategies to Modify the Test-Ordering Behavior of Medical Residents, 303 New Eng. J. Med. 1330 (1980).
23 5 U.S.C. 552 (1974).
24 These are: defamation, invasion of privacy, breach of statutory and fiduciary duties, breach of contract, and interference with contractual relationship.
25 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
26 See Kurland, The Private I, U. Chi. Magazine 1, 7, 8 (Autumn 1976), quoted in Whalen v. Roe, 429 U.S. 589, 599 (1977).
27 Inviolability of privacy in group association may on many circumstances be indispensable to the preservation of freedom of association, particularly where a group espouses dissident beliefs. NAACP v. Alabama, 357 U.S. 449, 462 (1958). The Court has continued to recognize an assertable privacy interest within the freedom of association guarantee of the first amendment. Baird v. State Bar of Ariz., 401 U.S. 1 (1971). But see Whalen v. Roe, 429 U.S. 589, 598-604 (1977) (rejecting application of first amendment to facts of case).
28 Terry v. Ohio, 392 U.S. 1, 9 (1968); Katz v. United States, 389 U.S. 347 (1967).
29 Loving v. Virginia, 388 U.S. 1, 12 (1967).
30 Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942).
31 si Roe v. Wade, 410 U.S. 113 (1973) (abortion); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).
32 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
33 pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
34 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
35 Roe v. Wade, 410 U.S. 113 (1973). But see Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J., concurring) (right to privacy is based on the ninth amendment).
36 See Doe v. Bolton, 410 U.S. 179, 219 (Douglas, J., concurring).
37 429 U.S: 589 (1976).
38 The covered drugs are opium and its derivatives, cocaine, methadone, amphetamines and methaqualone. N.Y. Pub. Health Law 3306 (Consol. 1976).
39 N.Y. Pub. Health Law 3331, 3333, 3338 (Consol. 1976).
40 N.Y. Pub. Health Law 3371 (Consol. 1976); see also N.Y. Codes, Rules & Regs. 80.107 (1973).
41 403 F. Supp. 931 (S.D.N.Y. 1975).
42 Id. Originally, the district court had dismissed the plaintiffs complaint tor want of a federal question, 357 F. Supp. 1217 (1973). The court of appeals, however, reversed the dismissal and remanded the case, 480 F.2d 102 (2d Cir. 1973).
43 Whalen v. Roe, 429 U.S. 589, 598-600 (1976).
44 429 U.S. 589 (1976).
45 Id. at 603-04. The Court also dismissed plaintiff-appellees first and fourth amendment claims. Id. at 604 n. 32.
46 Id. at 602, citing Planned Parenthood v. Danforth, 428 U.S. 52, 79-81 (1976). The Court employed a balancing approach similar to that used by the federal district court in Association of Am. Physicians & Surgeons v. Weinberger, 395 F. Supp. 125 (N.D. Ill. 1975). There, physicians presented their privacy claim in the context of legislation creating Professional Standards Review Organizations [PSROs] and requiring PSRO collection of data about physician performance in the workplace, 42 U.S.C. 1320c to 1320c-19 (1974 & Supp. 1981). The district court rejected this claim, holding that a privacy right was not violated since the information was sought for a legitimate governmental purpose and, in light of the confidentiality provisions of the statute, gathered and maintained in a reasonable manner. Despite its holding, the opinion implied that physicians have a constitutional right to informational privacy; nevertheless, the right is outweighed by public policy considerations. According to the court, the Professional Standards Review legislation contains provisions that properly balance the plaintiffs right of privacy with the Government's interest in maintaining proper health care in an economical manner. Association of Am. Physicians & Surgeons v. Weinberger, 395 F. Supp. at 137.
47 In a revealing bit of dictum, the Court dismissed the physicians claim of a right to administer medical care under the authority of Doe v. Bolton, 410 U.S. 179 (1973). According to the Court, the statute in Doe v. Bolton had violated a woman's privacy right by interfering with her freedom to make a constitutionally protected decision. If the statute had merely made the physician's work more laborious, as did the statute in Whalen v. Roe, without having any impact on the patient, it would not have violated the Constitution. Whalen v. Roe, 429 U.S. 589, 604-05 n. 33 (1976).
In Association of Am. Physicians & Surgeons v. Weinberger, 395 F. Supp. 125, 134 (N.D. Ill. 1975), the district court also rejected the physicians claim that data collection would have a chilling effect on the case-by-case practice of medicine; however, it did so first by invoking Congress intent in implementing the collection system. Neither should the use of norms as checkpoints nor any other activity of the PSRO be used to stifle innovative medical practice or procedures. The intent is not conformism in medical practicethe objective is reasonableness. S. Rep. No. 1230, 92d Cong., 2d Sess. reprinted in [1972] U.S. Code Cong. & Ad. News 4989. The Court then found that Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), were inapposite. Association of Am. Physicians & Surgeons v. Weinberger, 395 F. Supp. at 139.
48 We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive governmental files. Whalen v. Roe, 429 U.S. 589, 605 (1976).
49 Whalen v. Roe, 429 U.S. 589, 606-07 (1976) (Brennan, J., concurring).
50 The right to collect and use such computerized data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures . We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private datawhether intentional or unintentionalor by a system that did not contain comparable security provisions. Id. at 605-06. New York State had numerous security provisions:
[t]he forms are returned to the receiving room to be retained in a vault for a five-year period and then destroyed as required by statute. The receiving room is surrounded by a locked wire fence and protected by an alarm system. The computer tapes containing the prescription data are kept in a locked cabinet. When the tapes are used, the computer is run off-line, which means that no terminal outside of the computer room can read or record any information. Public disclosure of the identity of patients is expressly prohibited by the statute and by a Department of Health regulation. Willful violation of these prohibitions is a crime punishable by up to one year in prison and a 2000 fine.
Id. at 593-94.
51 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (there must be a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be treated fairly as that of the State itself).
52 Such interdependence arises where a private entity performs a government function or obtains some governmental decisionmaking authority. Id. at 352.
53 Id. at 353.
54 Miller, Personal Privacy in the Computer Age, 67 Mich. L. Rev. 1091, 1222-23 (1969)Google Scholar.
55 An index of current laws, including both case law and statutes, of the fifty states which addresses different aspects of the privacy issue can be found in the appendix of the report of the Privacy Protection Study Comm'n, Personal Privacy in an Information Society (1977): see also Lautsch, A Digest of State Legislation Relating to Computer Technology, 17 Jurimetrics J. 39, 44-82 (1976)Google Scholar.
56 42 U.S.C. 1320c-15 (Supp. 1981).
57 Congress may, in the future, decline to reenact the Professional Standards Review Organization legislation. See Wasted Health Dollars: Evaluation of Professional Standards Review Organizations: Hearings before the Subcomm. on Oversight it Investigations of the House Comm. on Interstate & Foreign Commerce, 96th Cong., 2d Sess. (1980).
58 42 U.S.C. 1320c-15(a)(l), (2) (Supp. 1981).
59 42 U.S.C. 1320c-15(d) (Supp. 1981). The Act does not exempt such records from criminal proceedings.
60 42 U.S.C. 1320c-15(c) (Supp. 1981). Proposed regulations essentially mimic these statutory penalties. 44 Fed. Reg. 3,058, 3,061-66 (1979). Specific revisions to title 42 of the Code of Federal Regulations include sections 476.5 (procedures for PSRO disclosure), 476.6 (limitations on redisclosure)'and 476.7 (penalties for unauthorized disclosure).
61 Section 1166 may authorize optional disclosure in order to implement the Act's review goals. The Health Care Financing Administration of HHS has reviewed, but has not yet proposed, regulatory provisions giving PSROs discretionary authority to disclose identifying information on practitioners and providers to the extent that the information displays patterns of practice or performance and medical care evaluation (MCE) study data. The purpose would be to make this information available to consumers and others concerned about local health care problems. 44 Fed. Reg. 3,058, 3,061 (1979). Disclosure, absent regulation, could violate the statute's confidentiality requirements, subjecting those approving such disclosures to potential criminal liability. See note 60 supra and accompanying text.
62 42 U.S.C. 1320c-15(b)(1) (Supp. 1981).
63 Disclosure may occur voluntarily where the Secretary establishes regulations to assure protection of the rights and interests of patients, practitioners and providers. 42 U.S.C. 1320c-15(a)(2) (Supp. 1981).
64 42 U.S.C. 1320c-15(b)(2) (Supp. 1981).
65 Id.
66 42 U.S.C. 1320c-1(b)(1)(A)(ii) (Supp. 1981) requires that PSROs consist of licensed physicians.
67 42 C.F.R. 476 (1978).
68 The proposed regulations would give PSROs the authority to obtain data from the medical records of patients whose care is at least partially paid for by the federal government. The utilization of these data must occur on-site, that is, at the provider's physical location. The Health Care Financing Administration specifically included this requirement to thwart unauthorized utilization of identifying information, 44 Fed. Reg. 3,058, 3,060 (1979).
The regulations make a distinction between data that identify providers or patients (confidential data) and those which aggregate patients and physicians. The regulations require PSRO disclosure, upon appropriate request, of the following, non-confidential material: norms, criteria or standards used to judge appropriateness of delivery; aggregated review statistics; and, MCE studies from which identifying characteristics have been removed. The regulations also require the disclosure of confidential information in certain situations. For example, PSROs must disclose patient-specific data to requesting patients or to their representatives if the disclosed information is likely to harm the patient, 44 Fed. Reg. 3,064 (1979) (to be codified in 42 C.F.R. 476.31(b)). Although the section does not define likely to harm, it would probably include emotionally disturbing data. PSROs must, upon request, and may upon their own initiative, disclose data about particular practitioners, reviewers or institutional providers to individuals or institutions. The regulations also require the disclosure of the practice patterns of physicians and reviewers to providers.
Finally, the regulations require PSRO disclosure of confidential information to claims payment agencies, investigative and prosecutorial agencies, state and federal health care licensing organizations, and public health officials. This information includes the relatively sensitive and subjective data contained in reports of PSRO interpretations and generalizations on the quality of health care, 44 Fed. Reg. 3,065-66 (1979) (to be codified in 42 C.F.R. 476.36(g)), and in MCE studies and sanction reports, 44 Fed. Reg. 3,066 (1979) (to be codified in 42 C.F.R. 476.38).
Accurate information forms the cornerstone of an effective review process, and verification of accuracy by those identified in such data creates a mechanism for resolving perceived factual errors. Additionally, the disclosure of information specific to physicians and providers will inevitably involve providers in the educational and enforcement process.
The Health Care Financing Administration has not yet adopted these regulations, presumably because of strong political opposition to even limited disclosure of provider specific data. One consumer organization has described the proposed regulations as insufficient to guarantee public access to PSRO data given the biases in favor of secrecy within PSROs. Bogue, PSROs: A Magical Medical Mystery Tour, 4 Health L. Proj. Lib. Bull. 180 (1979)Google Scholar. See also Amrhein, The Philadelphia PSROA Secret Society?, 4 Health L. Proj. Lib. Bull. 186 (1979)Google Scholar (Philadelphia PSRO illustrates existence of powerful professional desire for data secrecy).
69 42 C.F.R. 476.3(a), (e) (1978).
70 449 F. Supp. 937 (D.D.C. 1978), aff'd on remand, 477 F. Supp. 595 (D.D.C. 1979).
71 The plaintiffs argued that the data they had requested were useful on several grounds, the most interesting of which consider the relationship between quality of care and the pressures of competition. Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, 477 F. Supp. 595, 598-99 (D.D.C. 1979). Stanford University researchers have demonstrated that post-surgical mortality occurs at rates between two and three times higher in some hospitals than in others, even after the rates are adjusted to compensate for differences in patient age, medical condition, and other characteristics. Stanford Center for Health Care Research, Comparison of Hospitals with Regard to Outcomes of Surgery, 11 Health Servs. Research 112, 121-22 (1976)Google Scholar. For many types of surgery, these mortality rates improve as the number of surgeries performed increases. Luft, Bunker, & Enthoven, Should Operations Be Regionalized? The Empirical Relation Between Surgical Volume and Mortality, 301 New Eng. J. Med. 1364 (1979)Google Scholar. The plaintiffs in Public Citizen asserted that the availability of objective delivery data would help patients facing surgical procedures to evaluate the relative performance of providers. Wolfe, Testimony Before the Institute of Medicine Panel on PSRO Data Disclosure Policy (February 12, 1981). The plaintiffs also claimed that public disclosure of PSRO quality of care and utilization data would ensure that providers as well as insurance companies compete for prospective patients. Id. Recent evidence suggesting a link between quality problems and relatively higher costs provides support for the plaintiff's assertions. Zook, & Moore, The High Cost Users of Medical Care, 302 New Eng. J. Med. 996 (1980)Google Scholar. See also Christianson, & McClure, Competition in the Delivery of Medical Care, 301 New Eng. J. Med. 812 (1979)Google Scholar.
72 Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, 449 F. Supp. 937, 941 (D.D.C. 1978) [hereinafter cited as Public Citizen I].
73 Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, 477 F. Supp. 595, 599-605 (D.D.C. 1979) [hereinafter cited as Public Citizen II].
74 5 U.S.C. 552(b)(6) (1977). See also Florida Medical Ass'n v. Department of Health, Educ. & Welfare, 479 F. Supp. 1291, 1304 (M.D. Fla. 1979) (information that would tend to identify individual providers of Medicare by listing the amounts of their annual reimbursements is data within reach of Exemption Six (personal and medical files) of Freedom of Information Act, 5 U.S.C. 552(b)(6) (1977)).
75 Public Citizen II, 477 F. Supp. 595, 603-04 (D.D.C. 1979).
76 Id. at 604.
77 Id. at 605.
78 Id.
79 Id.
80 Id. at 605.
81 Id. at 603 n.11.
82 445 U.S. 169(1980).
83 Forsham v. Harris, 445 U.S. 169, 180 (1980).
84 Id. at 171.
85 Id. at 178-82. The Court relied on its earlier decision in United States v. Orleans, 425 U.S. 807 (1976), for this part of its test. Forsham v. Harris, 445 U.S. at 180 n.11.
86 Forsham v. Harris, 445 U.S. 169,182-86 (1980).
87 St. Mary Hosp. v. Philadelphia Prof. Stds. Rev. Org., No. 78-2943 (E.D. Pa. June 25, 1980).
88 Id.
89 42 U.S.C. 1320c-7(c) (Supp. 1981).
90 Forsham v. Harris, 445 U.S. 169, 171-75 (1980).
91 42 U.S.C. 1320c-4 to -7 (1974 & Supp. 1981).
92 Pub. L. No. 96-499, 928, 94 Stat. 2630 (1980) (to be codified in 42 U.S.C. 1320c).
93 Id. The Institute of Medicine of the National Academy of Sciences has initiated a study, funded by the Health Care Financing Administration of HHS, of PSRO data disclosure policy. The study committee will prepare a report analyzing the benefits and costs of more thorough disclosure.
94 Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, No. 79-2199 (D.C. Cir., filed Sept. 30, 1981).
95 [R]ecent cases have made it clear that any general definition [of the term agency] can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of the government done. Washington Research Project, Inc. v. Department of Health, Educ. & Welfare, 504 F.2d 238, 245-46 (D.C.Cir. 1974), quoted in Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, No. 79-2199 (D.C.Cir., filed Sept. 30, 1981).
96 42 U.S.C. 1320c-1(b) (Supp. 1981).
97 42 U.S.C. 1320c-4 (1972 & Supp. 1981).
98 U.S. Dep't of Health, Educ. & Welfare, PSRO Program Manual (1978).
99 Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, No. 79-2199 (D.C. Cir., filed Sept. 30, 1981).
100 Id. The court also relied on a statement in the preface to the Manual: the Department of Health, Education and Welfare recognizes that PSROs operate as independent, private, non-profit corporations. PSRO Program Manual, ch. XXIV, p.1, June 20, 1978. Id.
101 Regulation of insurance company practices is a state function under the McCarran-Ferguson Act, 15 U.S.C. 1011-15 (1970).
102 15 U.S.C. 1681-1681t (1976). The Privacy Act of 1974, 5 U.S.C. 552a (1976), created the Privacy Protection Study Commission which has since published its recommendations for the protection of personal privacy. Privacy Protection Study Comm'n, Personal Privacy in an Information Society (1977). The recommendations include inter alia amendments to the Fair Credit Reporting Act, 15 U.S.C. 1681-168H (1976), to prevent insurance institutions from obtaining information about an individual by means of pretext or misrepresentation and to limit disclosure of insurance data in all but a few situations. Privacy Protection Study Comm'n, Personal Privacy in an Information Society 155-222. See generally Matthias, Informational Privacy in the Insurance RelationshipA Review of the Privacy Protection Study Commission's Insurance Recommendations, 27 Drake L. Rev. 605 (1978)Google Scholar; Note, Informational Privacy: The Concept, Its Acceptance and Effect on State Information Practices, 15 Washburn L.J. 273 (1976).
103 15 U.S.C. 1681g(a)(1) (1976).
104 Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 250-51 (D.D.C. 1970) (recognizing a qualified privilege), aff'd, 479 F.2d 920 (D.C. Cir. 1973); see also Scott v. McDonald, 70 F.R.D. 568 (D. Ga. 1976) (construing Ga. Code 88-3205 to deny discovery of information presented in hospital review proceedings). But see Gillman v. United States, 53 F.R.D. 316, 319 (S.D.N.Y. 1972) (producing a mixed result); Gureghian v. Hackensack Hosp., 109 N.J. Super. 143, 262 A.2d 440 (1970).
105 Public Citizen Health Research Group v. Department of Health, Educ. & Welfare, No. 79-2199 (D.C. Cir., filed Sept. 30, 1981).
106 Holbrook, & Dunn, Medical Malpractice Litigation: The Discoverability and Use of Hospitals Quality Assurance Committee Records, 16 Washburn L.J., 54, 64-68 (1976)Google Scholar; Note, Medical Peer Review in the Health Care Industry, 52 Temp. L.Q. 552, 566-70 (1979).
107 See, e.g., Gillman v. United States, 53 F.R.D. 316, 319 (S.D.N.Y. 1972), discussed in Note, supra note 106, at 567.
108 Id.
109 See Note, supra note 106, at 569-70.
110 See notes 55-103 supra and accompanying text.
111 See, e.g., Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793 (N.D. Ohio 1965); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920); Munzer v. Blaisdell, 183 Misc. 773, 49 N.Y.S.2d 915 (1944); Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134 (1974).
112 See, e.g., Horne v. Patton, 291 Ala. 701, 708, 287 So. 2d 824, 829 (1973). Although breach of statutory duty was not pleaded, the court derived a duty of data confidentiality from the state licensing statute, which reads in part:
The state licensing board for the healing arts shall have the power and it is its duty to suspend, for a specified time, to be determined in the discretion of the board, or revoke any license to practice the healing arts or any branch thereof in the state of Alabama whenever the licensee shall be found guilty of any of the following acts or offenses:
(14) willful betrayal of a professional secret.
Ala. Code tit. 46, 257(21) (Supp. 1973).
But see Quarles v. Sutherland, 215 Tenn. 651, 656, 389 S.W.2d 249, 251 (1965) (licensing statute is a mere administrative regulation and does not give patients a right to recover).
113 See, e.g., Schaffer.v. Spicer, 88 S.D. 36, 215 N.W.2d 134 (1974).
114 See Note, A Physician is under a General Duty not to Disclose Information Obtained in the Course of a Doctor-Patient Relationship, 26 Ala. L. Rev. 485, 489-90 (1974).
115 McPheeters v. Board of Medical Examiners, 103 Cal. App. 297, 301, 284 P.2d 938, 939 (1930) (willful means done with a wrongful purpose).
116 See, e.g., McPheeters y. Board of Medical Examiners, 103 Cal. App. 297, 284 P.2d 938(1930).
117 Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973).
118 Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793 (N.D. Ohio 1965).
119 Id.
120 While the Federal Privacy Act of 1974, Pub. L. No. 93-579, 3, 88 Stat. 1897 (1974), as amended by Pub. L. No. 94-183, 2(2), 89 Stat. 1057 (1975) (codified at 5 U.S.C. 552a (1976)), governs data systems maintained by federal agencies, state laws vary widely over protection of individual privacy. Comment, The Use and Abuse of Computerized Information: Striking a Balance Between Personal Privacy Interests and Organizational Information Needs, 44 Alb. L. Rev. 589, 611 (1980).
121 Plaintiff-physicians may base actions of this kind on the extension of statutes that regulate medical data use, such as the physician-patient testimonial privilege statutes. Efforts to extend these statutes to situations involving the insurer's use of provider-specific data may succeed where explicit federal authorization does not exist. In Department of Social & Health Servs. v. Latta, 92 Wash. 2d 812, 601 P.2d 520 (1979), a state agency served an administrative subpoena duces tecum on defendant for identifying medical records in the course of a performance audit of the state Medicaid program. The Washington Supreme Court held that the physician-patient privilege was not applicable to the subpoena of these medical records. The court reasoned that state and federal law required Medicaid audits, and found that a provider's participation implied a duty to abide by these regulations. Furthermore, these audits did not contemplate public disclosure, but satisfied state law requirements that such information remain confidential. Latta would appear to stand for the proposition that federal authorization may be necessary for the disclosure of identity-specific data to competitive health care insurers. In Hawaii Psychiatric Ass'n v. Ariyoshi, 481 F. Supp. 1028 (D. Hawaii 1979), however, the court held that the state's Medicaid anti-fraud statute compelling disclosure of a psychiatrist's therapeutic notes, patient history forms, diagnoses and other confidential medical records violated constitutional prohibitions against invasion of privacy and unreasonable searches. Ariyoshi may be distinguished from Latta because the data at issue were unusually sensitive records regarding emotional instability. Institutional providers are not, however, able to assert a right to privacy against state medical records auditing laws. Wilson v. California Health Facilities Comm'n, 110 Cal. App. 3d 317, 167 Cal. Rptr. 801 (1980).
122 5 U.S.C. 552a(b) (1976) (No agency shall disclose ). Agency is defined in 5 U.S.C. 552(3) (1976).
123 H.R. 5935, introduced 96th Cong., 2d Sess. (reported from Committee, March 19, 1980).
124 Id. at 120-35.
125 Id. at 126(b)(1) (regarding audit procedure).
126 Id. at 126(b)(2) (regarding audit procedure).
127 Id. at 121(a).
128 Restatement (Second) of Trusts 13 (1959); see W. Seavey, Law of Agency 236 (1964).
129 Jones v. Fakehary, 261 Cal. App. 2d 298, 61 Cal. Rptr. 810 (1968); Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243 (1964).
130 Compare Pfaff v. Petrie, 396 Ill. 44, 50-51, 71 N.E.2d 345, 348 (1947) with Hinton v. West, 207 N.C. 708, 715-16, 178 S.E. 356, 359-60 (1935).
131 Wolinsky, & Econome, Seduction in Wonderland: The Need for a Seller's Fiduciary Duty Toward Children, 4 Hastings Const. L.Q. 249, 266 (1977)Google Scholar.
132 Weinrib, The Fiduciary Obligation, 25 U. Toronto L.J. 1, 4-5 (1975)Google Scholar; Scott, The Fiduciary Principle, 37 Calif. L. Rev. 539, 541 (1949)Google Scholar.
133 United States Liab. Ins. Co. v. Hardinger-Hayes, Inc., 1 Cal. 3d 586, 596, 463 P.2d 770, 776, 83 Cal. Rptr. 418, 424 (1970) (citing such cases).
134 Emmett v. Eastern Dispensary & Cas. Hosp., 396 F.2d 931, 935 (D.C. Cir. 1967) (broadening the confidentiality rule to encompass hospitals); see also Cannell v. Medical & Surgical Clinic, 21 Ill. App. 3d 383, 385, 315 N.E.2d 278, 280 (1974) (fiducial physician-patient relationships require disclosure to patient of data upon request).
135 Hammonds v. Aetna Cas. & Sur. Co., 237 F. Supp. 96, 102 (NX). Ohio 1965).
136 See Note, Medical Data Privacy: Automated Interference with Contractual Relations, 25 Buffalo L. Rev. 491, 501-03 (1976). For a well-argued proposal for expansion of the fiduciary doctrine in another context, see Wolinsky & Econome, supra note 131 (fiduciary duty of those who merchandise products to minors).
137 Both the holding and dicta of Hammonds v. Aetna Cas. & Sur. Co., 237 F. Supp. 96, 98 (N.D. Ohio 1965) suggest the appropriateness of legal theories based on the parties contractual relations. But see Christiansen v. National Savings & Trust Co., No. 70-1833 (D.D.C. October 16, 1980) (defendant insurance company did not owe fiduciary duty to plaintiff-patients, who instead were third party beneficiaries).
138 Several commentators have analyzed the application of defamation in the context of confidential medical data, but this treatment usually is limited to the use of this cause of action by a patient. See, e.g., Note, Medical Data Privacy: Automated Interference with Contractual Relations, 25 Buffalo L. Rev. 491, 499-500 (1976) (quality controls by data systems will furnish adequate defense); Baskin, Confidential Medical Records: Insurers and the Threat to Informational Privacy, 1978 Ins. L.J. 590, 598-600 (1978)Google Scholar (insurance companies have used qualified privilege in actions, concerning unknowing disclosure of false information); Note, Medical Peer Review Protection in the Health Care Industry, 52 Temp. L.Q. 552, 571-73 (1979) (doctrine of privileged communications protects peer review disclosures from liability for defamation); see also Greguras, Informational Privacy and the Private Sector, 11 Creighton L. Rev. 312, 315-20 (1977)Google Scholar (balancing public and private needs); Stevens, and Hoffman, Tort Liability for Defamation by Computer, 6 Rutgers J. Computers & L. 91 (1977)Google Scholar; Annot., 85 A.L.R.3d 1161 (1979) (defamation and communications between insurer and insured); Annot., 73 A.L.R.2d 325 (1960) (providers privilege regarding statements about patients).
139 W. Prosser, Hanbdook of the Law of Torts 111 (4th ed. 1971).
140 Id. at 112.
141 53 C.J.S. Libel & Slander 16 (1974) contains several examples of medical disclosures which, if false, would be libelous per se. These include disclosures concerning venereal disease, tuberculosis and the plague. See also W. Prosser, supra note 139, at 112.
142 Although its treatment by courts varies, a defamatory communication that is actionable per se is generally one so damaging on its face that injury to reputation is presumed. See generally W. Prosser, supra note 139, at 112.
143 See generally W. Prosser, supra note 139, at 112. A good example of the use of the qualified privilege to disclose is in Mayfield v. Gleichert, 484 S.W.2d 619 (Tex. Civ. App. 1972) (letter concerning incompetence of physician).
144 See W. Prosser, supra note 139, at 116.
145 A showing of malice will destroy the defense of a qualified privilege. Anonymous v. Health Ins. Plan, 12 Misc. 2d 1051, 173 N.Y.S.2d 74 aff'd sub nom., Shapiro v. Health Ins. Plan, 7 A.D.2d 733, 180 N.Y.S.2d 573 (1958), rev'd, 7 N.Y.2d 56, 163 NE2d 333, 194 N.Y.S.2d 509 (1959).
146 53 C.J.S. Libel and Slander 89 (1974); W. Prosser, supra note 139, at 115.
147 Johns v. Associated Aviation Underwriters, 203 F.2d 208, 211 (5th Cir.), cert, denied, 346 U.S. 834 (1953); Millsaps v. Bankers Life Co., 35 Ill. App. 3d 735, 342 N.E.2d 329 (1976).
148 See, e.g., Altoona Clay Prod. v. Dun & Bradstreet, Inc., 367 F.2d 625 (3d Cir. 1966) (privilege lost if defendant does not have reasonable grounds to believe the disclosure to be true); A.B.C. Needlecraft Co. v. Dun & Bradstreet, Inc., 245 F.2d 775 (2d Cir. 1957) (mere negligence sufficient); Roemer v. Retail Credit Co., 3 Cal. App. 3d 368, 83 Cal. Rptr. 540 (1970); Dun & Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896 (Tex. 1970) (malice exists only if defendant knows the disclosure was false or was in reckless disregard of the truth).
149 Freed, Legal Aspects of Computer Use in Medicine, 32 Law & Contemp. Prob. 674, 688 (1967)Google Scholar.
150 Stevens, & Hoffman, Tort Liability for Defamation by Computer, 6 Rutgers J. Computers & L. 91, 93 (1977).Google Scholar
151 But see Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973), cert, denied, 415 U.S. 985 (1974) (no qualified privilege to credit reporting agencies under Georgia law).
152 See Boyer, Computerized Medical Records and the Right to Privacy: The Emerging Federal Response, 25 Buffalo L. Rev. 37, 79-87 (1975)Google Scholar; Baskin, Confidential Medical Records: Insurers and the Threat to Informational Privacy, 1978 Ins. L.J. 590, 600-02 (1978)Google Scholar; Eger, Psychotherapists Liability for Extra-judicial Breaches of Confidentiality, 18 Ariz. L. Rev. 1061, 1077-83 (1976)Google Scholar; Cooper, The Physician's Dilemma: Protection of the Patient's Right to Privacy, 22 St. Louis U.L. Rev. 397, 416-17 (1978)Google Scholar; Willy, Right to Privacy in Personal Medical Information, 24 Med. Trial Tech. Q. 164, 171-75 (1978)Google Scholar; Note, Medical Data Privacy; Automated Interference with Contractual Relations, 25 Buffalo L. Rev. 491, 496-99 (1975). See generally Greguras, Informational Privacy and the Private Sector, 11 Creichton L. Rev. 312, 320-30 (1977)Google Scholar; Prosser, Privacy, 48 Calif. L. Rev. 383 (1960)Google Scholar.
153 Judicial recognition of a legal right to privacy generally occurred after publication Of an insightful and influential law review article, Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Legislative codification of the common law right to privacy followed. See generally Prosser, supra note 152.
154 Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902).
155 DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881); see Prosser, supra note 152, at 389-92.
156 Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931); Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973).
157 Time, Inc. v. Hill, 385 U.S. 374 (1967).
158 Cf. Blount v. T.D. Publishing Corp., 77 N.M. 384, 389, 423 P.2d 421, 424 (1966) (discussing newsworthiness of murder case).
159 Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9, 11 (5th Cir. 1962).
160 Meetze v. Associated Press, 230 S.C. 330, 336, 95 S.E.2d 606, 610 (1956).
161 Prosser, supra note 152, at 394-95. Certainly no one can complain when publicity is given to information about him which he himself leaves open to the public eye, such as the appearance of the house in which he lives, or to the business in which he is engaged. Id. at 394 (emphasis added).
162 Munzer v. Blaisdell, 183 Misc. 773, 49 N.Y.S.2d 915 (1944), aff'd, 269 A.D. 970, 58 N.Y.S.2d 360 (1945).
163 Prosser, supra note 152, at 396.
164 See, e.g., Whalen v. Roe, 429 U.S. 589, 602 (1976) (modern medical practice requires disclosures).
164 See notes 97-110 supra and accompanying text; see also 42 U.S.C. 1320c-15 (Supp. 1981).
166 Humana of Va. v. Blue Cross, 622 F.2d 76 (4th Cir. 1980) (public release of provider cost reports, pursuant to validly promulgated federal regulations, is consistent with the general grant of power by Congress to the Secretary of HEW); Parkridge Hosp. v. Califano, 625 F.2d 719 (6th Cir. 1980) (congressional policy favors public access to information regarding the quality of health care services rendered by providers participating in the Medicare program). But see Florida Medical Ass'n, Inc. v. Department of Health, Educ. & Welfare, 479 F. Supp. 1291 (M.D. Fla. 1979) (disclosure of physician names with Medicare reimbursement amounts held a clearly unwarranted invasion of physicians personal privacy).
167 Horne v. Patton, 291 Ala. 701, 709-10, 287 So. 2d 824, 830-31 (1973); see Note, Physicians and Surgeons: Civil Liability for a Physician who Discloses Medical Information Obtained within the Doctor-Patient Relationship, in a Non-litigation Setting, 28 Okla. L. Rev. 658, 664-65 (1975). But see Beaumont v. Brown, 65 Mich. App. 455, 237 N.W.3d 501 (1975) (disclosure was not an invasion, even though data leaked from person to person).
168 See, e.g., H.R. 805, 97th Cong., 1st Sess., 127 Cong. Rec. H116 (daily ed. Jan. 16, 1981).
169 Baskin, supra note 152, at 600-01. [T]he limited circulation of medical data for insurance purposes does not satisfy the publicity requirement for an action for invasion of privacy. If medical information is exchanged among the 700 members of the Medical Information Bureau, however, publication has occurred. Id. at 601-02. Many actions claiming invasion of privacy by physicians involved relatively widespread publicity. See, e.g., Feeney v. Young, 191 A.D. 501, 181 N.Y.S. 481 (1920) (movie showing plaintiff giving birth); Griffin v. Medical Soc'y of N.Y., 7 Misc. 2d 549, 11 N.Y.S.2d 109 (1939) (before and after pictures of plaintiff's nose published in medical journal). The Restatement (Second) of Torts 652D, Comment a (1976), suggests a distinction between publicity and publication: the latter means any communication by the defendant to a third person, while the former means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded to be substantially certain to become public knowledge. The court in Home thus appears to have confused the elements required of defamation and invasion of privacy.
170 See, e.g., Bitsie v. Walston, 85 N.M. 655, 515 P.2d 659 (Ct. App. 1973).
171 Restatement (Second) of Torts 652D (1976).
172 Sidis v. F-R Pub. Corp., 34 F. Supp. 19 (S.D.N.Y. 1938), aff'd, 113 F2d 806 (2d Cir. 1940).
173 Prosser, supra note 152, at 398.
174 217 Kan. 438, 536 P.2d 1358 (1975).
175 Id. at 444, 536 P.2d at 1363..
176 Id. at 445, 536 P.2d at 1364.
177 See Baskin, supra note 152, at 602 n.95 and cases cited therein.
178 See, e.g., Eger, Psychotherapists Liability for Extrajudicial Breaches of Confidentiality, 18 Ariz. L. Rev. 1061, 1065-73 (1976)Google Scholar; Feldman, & Ward, Psychotherapeutic Injury: Reshaping the Implied Contract as an Alternative to Malpractice, 58 N.C.L. Rev. 63 (1979)Google Scholar; Willy, Right to Privacy in Personal Medical Information, 24 Med. Trial Tech. Q. 164 (1978)Google Scholar; Note, Medical Data Privacy: Automated Interference with Contractual Relations, 25 Buffalo L. Rev. 491, 503-06 (1976); Note, Contractual Liability of Physicians: The Interface of Tort and Contract, 28 Buffalo L. Rev. 625 (1979) (review of the development of the traditional contract and its recent application in medicine); Cooper, The Physician's Dilemma: Protection of the Patient's Right to Privacy, 22 St. Louis U.L. Rev. 397, 418-19 (1978)Google Scholar.
179 Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio 1965).
180 H.R. 805, 203, 97th Cong., 1st Sess., requires written agreements between insurance plans and the insured members.
181 See, e.g., Mass. Gen. Laws Ann. ch. 176B, 7 (West) (giving physicians and chiropractors right to have written participation agreement with Blue Shield).
182 Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 799 (N.D. Ohio 1965); Hague v. Williams, 37 N.J. 328, 336, 181 A.2d 345, 349 (1962); Alexander v. Knight, 25 Pa. D. & C.2d 649, 655 (1961); Clayman v. Bernstein, 38 Pa. D. & C. 543 (1940). Cf. Guilmet v. Campbell, 385 Mich. 57, 188 N.W.2d 601 (1971) (physician or surgeon may promise by express contract to obtain specific results). See Note, 36 U. Cin. L. Rev. 103 (1967).
183 The generally recognized requirements for a contract are (1) a promise by a party having legal capacity to act, (2) two or more contracting parties, because the common law rule is that no man may contract with himself, (3) mutual assent, (4) consideration, (5) the agreement must not be void. 1 Williston [Contracts] 18 [(3d ed. 1957)]. J. Calamari & J. Perillo, The Law of Contracts 2-1 n.1 (2d ed. 1977). But see Gault v. Sedeman, 42 Ill. App. 2d 96, 191 N.E.2d 436 (1963) (separate consideration for a warranty of safety for operation apart from the fee paid is required for an action on breach of that contract).
184 See Eger, Psychotherapists Liability for Extrajudicial Breaches of Confidentiality, 18 Ariz. L. Rev. 1061, 1065-66 (1976)Google Scholar.
185 See Alexander, & Szasz, From Contract to Status Via Psychiatry, 13 Santa Clara Law. 537 (1973)Google Scholar.
186 One commentator suggests that physician disavowal of an implied duty of confidentiality is unlikely given its nature as an ethical precept of the medical profession, and that there will be a continuing judicial acceptance of an implied contract of confidentiality binding physicians. Note, Medical Data Privacy: Automated Interference with Contractual Relations, 25 Buffalo L. Rev. 491, 505 (1976).
187 McNamara v. Emmons, 36 Cal. App. 2d 199, 205, 97 P.2d 503, 507 (1939).
188 Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973); Doe v. Roe, 42 A.D.2d 559, 345 N.Y.S. 3d 560 (1973), aff'd on other grounds, 416 U.S. 907 (1974).
189 In Horne v. Patton, the court recognized public knowledge of the ethical standards of the medical profession as one of the bases for a patient's reasonable expectation that physicians promise to maintain the confidentiality of all information. 291 Ala. 701, 711, 287 So. 2d 824, 832 (1973).
190 Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret, quoted in Hague v. Williams, 37 N.J. 328, 332, 181 A.2d 345, 347 (1962).
191 A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community. A.M.A., Principles of Medical Ethics 9 (1971). See also A.M.A., Proceedings of the House of Delegates, Judicial Council Report a (June 1977) (matters not in the public domain relating to a patient's illness are the private right of the patient and are protected from public scrutiny by the privacy and confidentiality of the physician-patient relationship).
192 See, e.g., Ariz. Rev. Stat. Ann. 32-1401(10)(B), 1423(6) (1976); Cal. Bus. & Prof. Code 2361, 2379 (West 1977); Colo. Rev. Stat. 12-36-107 to 118 (1976).
193 See Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio 1965); Horne v. Patton, 291 Ala. 701, 711, 287 So. 2d 824, 832 (1973). When a contract exists between a provider and a patient for services, and a common understanding exists concerning protection of the confidential nature of the relationship, that understanding-is a part of the contract regardless of the existence of a legal duty. See Note, 79 Harv. L. Rev. 1723, 1724-25 (1966) (an implied contract can exist even where technical requirements are not satisfied, if the patient believes that there is an agreement and relies on it). See also Quarles v. Sutherland, 215 Tenn. 651, 655, 389 S.W.2d 249, 251 (1963) (absence of a legal duty to safeguard confidentiality is fatal to a tort action, but, a contract action is possible providing there exists a physician-patient relationship). One commentator has argued in favor of recognizing a physician-patient relationship regardless of whether a physician receives compensation from the patient. Note, Medical ConfidenceCivil Liability for Breach, 24 N. Ire. L.Q. 19, 22 (1973).
194 Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, at 797, 801 (N.D. Ohio 1965).
195 Horne v. Patton, 291 Ala. 701, 711, 287 So. 2d 824, 832 (1973) (Hippocratic Oath's secrecy provision, or A.M.A. Principles of Ethics or state's medical licensing requirements, singly or together, sufficient to justify implication of contractual duty of confidentiality). Cf. Freed, Legal Aspects of Computers and Confidentiality, 13 Jurimetrics J. 328, 329 (1978) (implied contractual obligation for computer service bureaus of non-disclosure of consumer data).
196 Joint Report of Judicial Council & Council on Medical Service, Confidentiality of Computerized Patient Information (A.M.A. 1977, adopted 1978).
197 Part II, Guidelines on Procedures which Control Access to Clinical Data and Limit Access to Computerized Data Base No. 6 reads:
PrefaceOnce confidential medical information is released to other organizations, effective control over subsequent use of the data is greatly diminished. Accordingly, organizations receiving such data should be sensitized to the data's confidential nature and limitations on its use. Guideline: Data release limitations should be specifically stated for organizations or individuals receiving confidential medical data, such as PSRO's, peer review bodies, Health Systems Agencies, and third party insurance intermediaries. All such organizations or individuals should be advised that authorized release of data to them does not authorize their further release of the data to additional individuals or organizations.
(Emphasis added.)
198 Secrecy is the absolute form of privacy, while confidentiality represents an intermediate stage of restricting access to data.
199 See, e.g., Millsaps v. Bankers Life Co., 35 Ill. App. 3d 735, 342 N.E.2d 329 (1976) (qualified privilege of disclosure bars defamation action against insurer). Senogles v. Security Benefit Life Ins. Co., 217 Kan. 438, 536 P.2d 1358 (1975) (conditional privilege of disclosure bars action for invasion of privacy against insurer). The existence of a qualified or conditional privilege to disclose, under defamation and invasion of privacy theories, would be part of the implied contract.
200 Baskin, supra note 152, at 602, citing Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973) (no legitimate interest of employer in employee's records).
201 Aetna Life Ins. Co. v. Mutual Benefit Health & Accident Ass'n, 82 F.2d 115 (8th Cir. 1936); Silas v. General Motors Corp., 372 Mich. 542, 127 N.W.2d 357 (1964); Sullivan v. Strathan-Hutton-Evans Comm. Co., 152 Mo. 268, 53 S.W. 912 (1899). See also Time, Inc. v. Firestone, 424 U.S. 448 (1976) (first amendment does not protect defamation of private person or public person in private capacity).
202 See Note, Medical Data Privacy: Automated Interference with Contractual Relations, 25 Buffalo L. Rev. 491, 506 (1976).
203 A patient's waiver of the right of privacy for personal medical information does not waive the physician's rights, but may constitute consent for the disclosure of data that identifies that patient. See generally Rosen, Signing Away Medical Privacy, 3 Civ. Lib. Rev. 54 (1976)Google Scholar.
204 W. Prosser, supra note 139, at 129-30; see also Metropolitan Opera Ass'n v. Wagner-Nichols Record Corp., 199 Misc. 786, 101 N.Y.S.2d 483 (1950), aff'd, 279 A.D. 637, 107 N.Y.S.2d 795 (1951).
205 Carpenter, Interference with Contractual Relations, 41 Harv. L. Rev. 728, 732-42 (1928)Google Scholar.
206 Although ill will was originally one requirement for a prima facie case using this theory, the modern application of this tort recognizes proof of intentional interference as facially adequate; thereafter, the burden of proof shifts to defendant for a demonstration of adequate justification. Carpenter, supra note 205, at 734-35 n.139; see also W. Prosser, supra note 139, at 129 n.138.
207 See, e.g., Symon v. J. Rolfe Davis, Inc. 245 So. 2d 278 (Fla. 1971) (interference in business relationship, if intentional, implies malice); Grammenos v. Zolotas, 356 Mass. 594, 254 N.E.2d 789 (1970) (an intentional act is malicious even if arising from good motives); Raymond v. Cregar, 38 N.J. 472, 185 A.2d 856 (1962) (malicious interference is intentional wrongdoing without justification or excuse).
208 Carpenter, supra note 205, at 745-62. The six justifications include interference in order: to protect other contract or property rights; to protect life, reputation or health; to give disinterested advice; to discipline, to appeal to the authorities for redress, or to act in performance of duty; to avoid dealing; and, to engage in competition.