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?
I would contact a Judge tell the Judge the story without divulging the patents name and have the judge rule whether or not I am allowed and or required to continue to give any further information. Our legal system may not be perfect but it is better than anything else that had preceded it. As well who said the patient is telling the truth. He could be delusional and or he could be in cahoots with the convicted felon to help the felon get out.
Friends:
Before I “turned from the dark side of the force” I was both an attorney and Public Defender. In my experieince I encountered individuals who would habitually confess to things they did not do. For a fascinating read on a famous case I refer you to “The Blooding” by Joseph Wambaugh. In that case, a learning disabled boy confessed to rape, sodomy and murder of a girl. His innocence was ultimately established and the perpetrator convicted by the first foresnic use of DNA. So caution is in order.
Moreover, the Criminal Justice system is notoriously unreliable. There are individuals who get caught up in it becaue they conduct their lives in such a way that they stay on the verge of trouble all the time. They would be, as Captain Reynaud (Claude Raines, Casablanca) described them, “The Usual Suspects.” I would submit to you that the appropriate step is to contact both the District Attorney and the Attorney who represented the accused. Sit down with them at the same time share what you have gleaned from your patient without revealing his identity. You may learn that they will tell you who your patient is and that he has already been considered and ruled out as a suspect. If they don’t you may be in a position to learn that your patient was not involved. This prevents the ongoing harm of an innocent falsely convicted person and shields the identity of your patient. If your patient is a possible suspect, you can let the Court rule after argument on whether you should disclose his identity
Another possibility: contact the police, FBI or Innocence Project and tell them that your patient confessed, but don’t identify him. They can investigate and see if evidence or alternative suspects were overlooked and if the defense was inadequate.
Question for Dr Fowler – if you took the hypothetical meeting you described with the judge and defense lawyer, and somehow the defense counsel deduced the name of your patient, could he compel you to testify against your patient? Would the doctor be obligated on the stand to divulge the identity of the patient and the specifics of the “confession”? If the doctor spoke out, would he have violated any law and be subject to either medical board prosecution or a malpractice suit by the patient (for divulging protected information)?
And it reminds me of the line from Les Miserables: “If I speak, I am condemned. If I stay silent, I am damned.”
There is no toughness about it. If you are on the side of humans…then one knows what must be done. Additionally, this criminal patient has incorrectly used his provider as a priest to confess his guilt to relieve his headaches. So, what now? The now informed doctor is supposed to now carry the guilt of another subhuman for an act/process he did not commit? If said subhuman criminal patient expected as much then that would also mean that said subhuman criminal patient is also a tyrant…one who now expects that the newly informed doctor now carry the responsibility of burden of guilt for a process that said subhuman criminal patient was in control of.
F**k em. Turn em in asap. There’s too much of that immoral crap going on in this very screwed up amoral society already.
For me even if there were any legal consequence for the doctor turning him in….one must know where one stands. Legal is not moral. Everything Adolf Hitler did was legal….though none of it moral.
In fact, the state in which the doctor practices may have mandatory reporting of such things.
The evil buck should stop there. I would without hesitation notify the authorities immediately as to what this criminal patient had done…even I would call in front of him/her. He/she had actually committed two crimes…..the crime itself….and then concealing it knowingly while someone else went to jail. That someone else is also a person. That someone else also had a life. That someone else is no longer free. That someone else may have had and lost a family.
“All that is necessary for the triumph of evil is that good men do nothing” – Edmund Burke
Also…”All that is necessary for the triumph of evil is that good women do nothing” – maybe an original but I doubt it.
It is not surprising that this particular patient’s headaches went away: He successfully transferred them to his doctor. While I do agree with RB that “All that is necessary for the triumph of evil is that good people do nothing” there may be another price yet to be paid for doing the right thing.
That may very well be the loss of the doctor’s medical license, or at minimum, a statement against him/her on their permanent record from the State Medical Society. There is a hierarchy of options from the State Medical Society, from doing nothing to the very worse result for the doctor. If the doctor has some enemies, say other competing specialists who would like a share of his practice, he might end up facing a malefactor’s tribunal. Then, there is also the law of unintended consequences. Nobody knows where they may turn.
Lawyers have a well defined Bar experience with such divulging: That usually means disbarment. With medical doctors, such consequences are less well defined. But make no mistake, there ARE consequences.
Like treating warts, there is no perfect solution, and many opportunities for a less than perfect result. The patient himself is such a thing: A wart on the nose which could turn into a cancer for the doctor and may already have had the same result for a tragically under-represented, perhaps innocent victim.
But my vote is to at least try to do the right thing, and face the consequences. And the rest of us remain grateful that it is not US who have to make that choice….yet.
Michael M. Rosenblatt, DPM
RB for President!!!!! RB for President!!!!
Mark
I would do my research and contact my malpractice carrier, because of course i wouldn’t want to lose my license to do what i love and provide for my family, but with FULL intent not to give up until I do the right thing for the potentially innocent person in jail (assuming there is no conspiracy theory Etc that the investigors can deal with)…but call it the Golden Rule, Religuous integrity, or even if you are an atheist u still know right from wrong, but ME personally,, as a Christian. An Eagle Scout. A father, husband, doctor, martial artist, human being…, imperfect as I am … I would ultimately do the right thing because I would rather face a Judge in this screwed up legal system court of law than face MY Heavenly Judge above when my time is up
And He asks me “why did u let another man rot in prison when u knew u should have stood up for him and done what was right? Was it So u could buy you another car and a bigger house? So u could keep a medical license, were u scared? THIS HOUSE is much bigger and better”.. The poor guy in the penthouse jail cell #7…. We owe it to him to do the right thing… And power in numbers…. …
RB…. U up for president?!!!
After pondering over this this unusual conundrum, if I were the physician, I would have to rely on the guidance of MedicalJustice and my priest.
Follow up thoughts:
In response to Mr. Teitlebaum:
Recall the meeting is with the District Attorney and the Defense Lawyer. There is no point meeting with the Judge, he has no power . Second, While you may be subpoenaed, they cannot compel you to testify. The Doctor can have his own lawyer move to quash the subpoena.
Whet they may be able to compel is sufficient information to show that that the wrongly convicted person is wrongfully convicted. The point I was driving at is you may be able to disclose enough to get the ball rolling and reopen the investigation.
Has anyone ever heard of a physician losing his license for disclosing this type of information? I have not.
Finally, as can be seen IN OJ’s case a lawyer may disclose his client’s confidences to prevent a fraud on the court. That concept may apply here.
In OJ’s current case (a hearing seeking a re-trial for his kidnapping/robbery conviction), he is taking aim at his ex-attorney.
His ex-attorney testified to tell his side of the story.
My understanding is that OJ waived his right to attorney-client confidentiality, making his attorney’s testimony possible. That testimony might have still been possible. But, if OJ refused to allow his attorney to speak candidly, he would probably have not have been able to advance his request for a retrial as far as he did.
I agree with Medical Justice about OJ. Ultimately OJ probably thought that his own (previous) attorney would not bury him under a bus. And, a re-trial would be about OJ’s best possible result from the effort at releasing his previous counsel.
Ultimately OJ is just a thug. And most likely a double murderer to boot. Although I am not a believer in Karma, I would have to suppose that his is just about the worst you could have.
Michael M. Rosenblatt
I am a psychiatrist. If I had a patient who told me this story, I would think it might or might not be true. If something later caused me to know it was true, I would report at that time. I’m not sure non-psychiatric patients are less complex psychologically than official psychiatric patients.
I am inquisitive enough to obtain the records of the trial of the purportedly innocent man. Having obtained them, I would let my conversation about the trial with the headache sufferer guide me in deciding whether to involve anyone else.
Of course, such a fantasized response is not focused on liability–which is part of why I am a member of this organization. Often the requirements of medical practice go in a different direction from the requirements of self defense.
A small addition to an impressive commentary, in the form of a brief story: A patient came into a busy public clinic, clearly distressed, sat for intake, and said “I just killed my wife.” The (female) therapist took a very deep breath and said– “that is very upsetting. You can understand that it is a bit hard to take. Please let me take five minutes to catch my breath and I will be right back to see how we can help you.”
She returned in a few minutes, completed the intake, and they agreed he would stay on their crisis unit. Two to three days later, he turned himself into the police.
I submit that if this sequence of action occurs, it would be the best: it returns the headache to the “patient” and provides an admirable solution for all (it may be that such exculpation will be necessary really to provide headache relief!). The physician is not required to break confidentiality. If in fact the patient is operating from delusional guilt (and I agree that is a real possibility–could even in fact actually know the “real” perpetrator, or believe that he or she could have prevented the killing instead of being the actual murderer), that problem will also emerge.