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Health and the Right to Privacy

Published online by Cambridge University Press:  24 February 2021

Paul Starr
Paul Starr*
Affiliation:
Princeton University
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Extract

When Louis Brandeis and Samuel Warren introduced the phrase “the right to privacy” as the title of an article in the Harvard Law Review in December 1890, they were primarily concerned about a right of privacy from the news media. “The press,” they wrote, “is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.”

Type
Articles
Information
American Journal of Law & Medicine , Volume 25 , Issue 2-3: Electronic Medical Information: Privacy, Liability & Quality Issues , 1999 , pp. 193 - 201
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1999

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Footnotes

†

The First Annual Justice Louis Brandeis Lecture delivered at the 21st Annual Meeting of the Massachusetts Health Data Consortium, Boston, Mass., April 16, 1999; sponsored by Nutter, McClennen & Fish, L.L.P.

References

1 See Warren, Samuel D. & Brandeis, Louis D., The Right of Privacy, 4 Harv. L. Rev. 193 (1890)CrossRefGoogle Scholar.

2 See id. at 196.

3 See id.

4 376 U.S. 254(1964).

5 385 U.S. 374(1967).

6 See, e.g., Amitai Etzioni, the Limits of Privacy (1999).

7 See, Priscilla M. Regan, Legislating Privacy: Technology, Social Values and Public Policy 19, 209-11(1995).

8 See Testimony before the Subcomm. on Gov't Mgmt., Info., & Tech. of the House Comm. on Gov't Reform and Oversight, 105th Cong. (May 19, 1998) (Testimony of Janlori Goldman, Director, Health Privacy Project, Institute for Health Care Research and Policy, Georgetown University).

9 See id.

10 See id.

11 See id.

12 See Ellen E. Schultz, Open Secrets: Medical Data Gathered By Firms Can Prove Less Than Confidential, Wall St. J., May 18, 1994, at Al, available in LEXIS, News Library, WSJ File.

13 Alan Westin, Privacy and Freedom (Atheneum 1967).

14 See id.

15 For this argument, I am indebted to Etzioni, supra note 6.

16 See Douglas B. McCarthy et al., Medical Records and Privacy: Empirical Effects of Legislation, Health Services Research, Apr. 1999, at 34 (Special Supp., no. 1, Part II).

17 The New York Times reports that many physicians in private practice are now being paid by pharmaceutical companies to test drugs on patients, who are generally unaware of the fees the doctors receive. See Kurt Eichenwald & Gina Kolata, Drug Trials Hide Conflicts for Doctors, N.Y. Times, May 16, 1999, at Al. The ethical issues in such cases involve not so much the privacy of the data as the use of financial incentives to induce doctors to experiment on their patients and the failure of physicians to disclose to patients their conflicts of interest.