Request By:
Mr. T. M. Hamilton
Assistant Director
Biomedical Learning Resources
Health Services Center
University of Louisville
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that it has been standard practice to videotape patient interviews and examinations for teaching purposes at your facility. You are concerned that this practice may be unethical or illegal under state law and you state that the problem is most acute when psychiatric patients are interviewed. You have devised a release form which you require the patient to sign before the taping of the interview. Furthermore, lighting of the set is not permitted in order to prevent patient identification. Another concern is that the release form may not be sufficient to preclude potential lawsuits.
As an alternative to the present procedure, you mention a system utilized by the University of Southern California involving videotaped patient interview simulations whereby professional actors are employed to take the patient's role. You seek our opinion concerning the procedure you are now using as apparently that will assist you in determining whether the present system should be retained or the alternative system suggested.
In considering privileged relationships and communications made pursuant thereto, that is, where a communication is made to a person in his professional capacity and that person cannot, without the consent of the person making the confidential communication, testify as to such communication, the doctor-patient relationship does not enjoy the same status as the attorney-client relationship and the relationship involving an ordained minister, priest, rabbi or accredited practitioner of an established church or religious organization and persons communicating to them in their professional capacities. KRS 421.210 (4) deals with the attorney-client relationship and the relationship involving religious leaders but neither that particular subsection nor any other section of any statute recognizes, generally, a claim of privilege between a patient and his physician.
KRS 421.215 (2) recognizes a psychiatrist-patient privilege but subsection (3) of that statute sets forth the situations and circumstances where the privilege does not apply. In KRS Chapter 213 dealing with Vital Statistics, KRS 213.200 provides:
"For the purposes of this chapter, the confidential relations and communications between physician and patient are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed."
In
Boyd v. Wynn, 286 Ky. 173, 150 S.W.2d 648 (1941), the Court of Appeals of Kentucky (now the Supreme Court of Kentucky) held that the communications described in KRS 213.200 were privileged but any communications made to the physician regarding anything other than those protected by KRS 213.200 were not privileged communications. The Court further stated that at common law neither the physician nor the patient could claim the privilege of refusing to disclose confidential communications between them in the course of the physician's treatment of the patient in a professional capacity. Other than the statutory exception noted, the Court said the common law rule is still in force with respect to privileged communications between doctor and patient. See also
H.H. Waegner & Co. v. Moock, 303 Ky. 222, 197 S.W.2d 254 (1946). Kentucky still has not modified the common law rule concerning the lack of privileged communications between the doctor and his patient except for those covered by KRS 213.200.
Having considered the concept of privileged communications in regard to the doctor-patient relationship, we next turn to the area of the confidential relationship between the doctor and his patient. In this area also, there is no statute or case law in this state which generally creates a confidential relationship between a physician and his patient although KRS 213.200, discussed previously, mentions the confidential relations and communications between physician and patient in applying the concept of privileged communications to those particular situations covered by that statute.
KRS 311.595 (1)(o) provides that the State Board of Medical Licensure may suspend, revoke, limit or restrict a license to practice medicine or place the licensee on probation upon proof that the licensee has "willfully violated a confidential communication. " In OAG 78-288, copy enclosed, we said that the enactment of this provision indicates an intent to repeal the common law rule to the extent that a physician who violates a confidential communication is at least liable to the State Board of Medical Licensure. Therefore, if a physician wrongfully discloses confidential information he is accountable to the Board. Whether a communication is confidential depends upon whether a physician-patient relationship exists. In connection with the creation of a physician-patient relationship see 61 Am.Jur.2d, Physicians, Surgeons, Etc., § 96.
There are no reported cases construing KRS 311.595 (1)(o) but regardless of whether that provision merely holds the physician accountable to the State Board of Medical Licensure or creates a right of the patient against the physician for a violation, the courts of other jurisdictions have frequently upheld the right of a patient to recover damages from a physician for unauthorized disclosure on the ground that such disclosure constitutes an actionable invasion of the patient's privacy. See 20 ALR 3d 1109, Annotation, § 3, page 1114.
In
Perry v. Moskins Stores, Ky., 249 S.W.2d 812 (1952), the Court said that the right of privacy while not absolute is well established in this jurisdiction:
". . . It is based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. . . ."
See also
Wheeler v. P. Sorensen Manufacturing Company, Ky., 415 S.W.2d 582 (1967) and the authorities cited therein.
In OAG 77-71, copy enclosed, we said that although there is no claim of privilege or confidential relationship between a patient and his physician, the unauthorized disclosure of information by the physician may lead to a suit for invasion of the right of privacy or the violation of a contract implied in fact. Neither a physician nor other staff members may reveal communications with a patient without consent even though the communication is not privileged unless there exists an overriding public interest.
In connection with your release or consent form, we first direct your attention to 15 Am.Jur. Legal Forms 2d, Physicians and Surgeons, §§ 202.171 to 202.178 (Release of Confidential Information) and §§ 202.191 to 202.197 (Patient's Right to Privacy) . In addition, see 62 Am.Jur. 2d, Privacy § 19, where it is stated that for a waiver or consent to be asserted as a defense in a bar to an action for invasion of privacy, the waiver or consent must be as broad and inclusive as the act complained of. As far as the specifics of your particular release form are concerned, you will have to consult with your university legal counsel first. While we can attempt to answer a particular question, it is not our function to prepare such a form. Furthermore, we do not have enough specific factual information to fully understand exactly what and who is involved in your videotaping of patient interviews and examinations.
We have not discussed any matters involving the application of medical ethics as those situations should be referred to your local or state medical associations.
Conclusion
There is no statute or case law in Kentucky creating, generally, either a privileged relationship or a confidential relationship between a physician and his patient. However, because of the private and confidential nature of the relationship between a physician and his patient, courts of many other jurisdictions have upheld the right of a patient to recover damages from a physician for unauthorized disclosure of information on the ground that such disclosure constitutes an actionable invasion of the patient's privacy. Before such a communication can be considered private and confidential, however, a physician-patient relationship must exist. The consent or waiver form you now utilize should be examined by the university's legal counsel to determine whether it meets the needs and requirements of your particular program. While a patient may permit the disclosure of information communicated to his physician, the authorization form should be drafted so that the patient knows what he is releasing and that the information obtained and used is within the limits of what the patient has consented to release.