May 17 2013
The NY Times hosts a column each Sunday called the Ethicist. Readers send in their real-life ethical conundrums, and the columnist weighs-in with advice.
Recently, a doctor wrote that “years ago” his patient was having headaches. The patient finally confessed that he committed a serious crime and somebody else “took the fall for it.” Once he confessed, his headaches disappeared. The question posed to the Ethicist was “Should I Protect a Patient at the Expense of an Innocent Stranger?”
The doctor supposedly consulted with a hospital lawyer. The attorney re-assured there was no obligation to report the incident, because there was no risk of the patient imminently harming himself or others – two situations that might call for breaking doctor-patient confidentiality.
In some states, a doctor has a duty to warn a third party about a specific risk of harm his patient might cause. In other states, a doctor is allowed to warn a third party about a specific risk of harm his patient might cause.
In the first case, the doctor risks liability to the third party if the patient acts on the threat and the doctor stood on the sidelines without warning the stranger.
In both circumstances, the doctor is immune from liability for violating doctor-patient confidentiality.
Back to the ethical dilemma. The reason maintaining confidentiality in a doctor-patient relationship is so important is to encourage candor. If patients believed their most intimate secrets would be divulged, they would withhold information – perhaps to their own detriment.
Nonetheless, something doesn’t feel right about the doctor knowing an innocent man is rotting in jail and he has the power to change that outcome.
The path of least resistance is to encourage the patient to make his own confession to the proper authorities. Perhaps the statute of limitations for the original crime has passed- and the patient would not even be prosecuted. If so, the patient takes zero risk, and the stranger benefits.
Next, doctors are free to divulge confidences if they believe a third party is at risk of imminent harm at the hands of a patient. Arguably, the patient’s actions have created a situation where each and every day, a person sits, unjustly, in a prison cell (assuming the stranger is still in jail). And arguably, this is a harm that could be redressed each and every day. It is not the same type of “emergency” as a patient threatening bodily harm. But, intervention could change the outcome.
The other dilemma is that the patient isn’t directly causing the continued harm. The state prosecuted the stranger. And presumably he was convicted beyond a reasonable doubt – with our collective understanding the judicial system is not perfect. The patient is not making any threat and he is not preparing to take an affirmative step to cause harm. It’s a past action that is leading to continued harm by another actor, the state.
Assume, despite your gentle persuasion, the patient is adamant he will not step up and right the wrong. What would you do?