When, if ever, can MJ's doctors talk about all of his surgeries?

June 27, 2009 8:03 AM

How far does doctor-patient confidentiality extend?

Sparked by Michael Jackson's untimely demise, I grew curious about all of the doctors he obviously saw over the course of his adult life, who helped him change his appearance, administer drugs, etc. As a matter of fact, it sounds like one of his closest companions was a doctor. Now, I know that no doctor who has treated Michael Jackson is legally allowed to publicly state any confidential information regarding his treatment(s). But what if any of these doctors wrote down their recollections, and say, twenty-five years following their own death, those papers were unsealed, would it then be legal to publicize that information? Is doctor-patient confidentiality perpetual, or are there limits?

posted by msali to grab bag (9 comments total)

Doctor-patient confidentiality should survive death, like lawyer-client confidentiality. It would be up to Michael Jackson's estate or heirs to enjoin or sue any doctor who tries to go public with detailed information. I think that in such a scrutinized case, though, respect for confidentiality will likely be disregarded by both his doctors and his lawyers.
posted by motsque at 8:29 AM on June 27

My guess is that, as with many legal questions of this nature, the best answer to this question is "it depends."

A lawyer friend once recommended that I read the book Getting to Maybe to appreciate how indefinite the law is.
posted by dfriedman at 9:05 AM on June 27

...is legally allowed to publicly state any confidential information...

I believe you misunderstand the situation. The legal precedent is that they cannot be compelled to reveal that information, in court testimony or in any other way. Such communication is considered "privileged".

But they can reveal it voluntarily any time at all. It isn't illegal for them to do that.

It can be considered a breach of professional ethics, and that can lead to disciplinary action by licensing authorities.

But even that isn't certain. For instance, patients routinely waive that confidentiality for insurance reasons. Pretty much every insurance company requires you to sign such a waiver so that they can access your doctor's records.

When can his doctors talk? They can do so right now, but they probably won't because it would be considered unethical. But it isn't illegal for them to do so.
posted by Chocolate Pickle at 11:43 AM on June 27

His physicians are indeed prohibited by federal law from releasing information about his treatment under the terms of the Health Insurance Portability and Accountability Act (HIPAA). According to the World Privacy forum, doctor-patient confidentiality is perpetual.
posted by timeo danaos at 11:56 AM on June 27

I stand corrected.
posted by Chocolate Pickle at 12:00 PM on June 27

>But they can reveal it voluntarily any time at all. It isn't illegal for them to do that.

Not only was that wrong with respect to the Federal law, it would also be wrong under the laws of many states.
posted by megatherium at 12:15 PM on June 27

Thanks everybody. I appreciate your answers.
posted by msali at 2:23 PM on June 27

Chocolate Pickle, your answer is wrong, wrong, wrong.
posted by Asparagirl at 9:08 PM on June 27

Chocolate Pickle, your answer is wrong, wrong, wrong.

Not entirely - many rights can be waived, and health information privacy is one of them. As chocolate pickle pointed out, people routinely waive that right in favor of their insurance companies. If you ever decide to sue someone for an injury? You better believe your medical records will be in evidence and your doctors will be examined if your suit goes to trial. (You'd be surprised, too, what is covered under the umbrella of "relevance".)

Now, can an estate waive the privacy rights of a deceased? That's an interesting legal question. Again, in the context of a lawsuit where the medical records are relevant, in my experience the answer is yes. So, for example, if there was some evidence that a doctor or doctors' treatment led to or hastened his death and the family wanted to sue, the medical records and the doctors' testimony would in all likelihood be fair game. (In my jurisdiction, anyway.) If the court records are not sealed, whatever evidence makes it to trial would become part of public record.

For the purposes of, say, talking to the tabloids or writing a tell-all memoir, it does seem likely that a doctor would be prohibited by the applicable law from doing so. But I wouldn't say that's an absolute certainty.

(TINLA)
posted by AV at 5:18 AM on June 28