Welcome to Ethics Consult -- an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma from a true, but anonymized, patient care case, and then we provide an expert's commentary.
Last week, you voted on whether a doctor is liable for withholding a patient's inherited cancer diagnosis from their family.
Should the doctor be liable for damages?
Yes: 14%
No: 86%
Do you believe the doctor acted ethically?
Yes: 74%
No: 26%
And now, bioethicist Jacob M. Appel, MD, JD, weighs in.
The legal and ethical duties of physicians to individuals who are not their patients have expanded significantly over the past half-century. Whereas once claims of doctor-patient confidentiality absolved providers of most obligations toward third parties, courts have now trimmed these protections substantially.
Many state laws, modeled on California's "Tarasoff rule," require psychiatrists to warn and/or protect the potential victims of dangerous patients. Some states expect physicians treating patients with contagious diseases to notify family members of their risk. In the Tennessee case of Bradshaw v. Daniel (1993), a court for the first time expanded that duty to warn relatives of noncontagious patients as well. In that case, the wife of a man treated for Rocky Mountain spotted fever was not informed that she might have been exposed to the illness through the same source as her husband. She later also died of the disease, and her family won a lawsuit on the grounds that she had not been advised to seek medical care.
In addition, several jurisdictions have enacted mandatory partner-notification statutes, requiring physicians to report patients testing positive for HIV to the health authorities, who will then inform the patients' at-risk contacts of their exposure.
The widespread rise of genetic diagnoses and testing has also raised the question of what duties physicians may owe to patients' family members at future risk of hereditary diseases.
The first two courts to address the question of whether the risk of genetic illness should be shared with a patient's relatives decided the matter differently. In Pate v. Threlkel (1995), the Florida Supreme Court, noting the importance of physician-patient confidentiality, ruled that a physician had fulfilled his duties when he told the patient herself of her family's risk; it was therefore the moral obligation of the patient, not the doctor, to pass this information along to vulnerable relatives.
A year later, in Safer v. Estate of Pack, the New Jersey courts arrived at precisely the opposite conclusion, finding negligence when a physician failed to warn the patient's child directly of her genetic risk of colon cancer. While telling patients of the danger to their relatives is now widely understood to be a part of sound medical practice, how to act when patients wish to keep the information secret remains controversial.
Both the American Society of Human Genetics (ASHG) and the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research issued specific guidelines on disclosing hereditary risks to family members. According to ASHG policy, such disclosures must meet the following four criteria: 1) efforts to get the patient to tell his family directly have failed; 2) the risk of serious harm is high; 3) a specific at-risk relative can be identified; and 4) methods of prevention or treatment exist, or early monitoring reduces risk. These guidelines conflict with those of the American Medical Association, whose principles favor maintaining confidentiality.
Unlike Allen Harper, MD, who cannot undo the damage to Maureen, future physicians may choose to inform patients in advance that they will breach genetic confidentiality, as a matter of policy, to protect relatives at risk. Such "fair warning" might, of course, drive some patients away from effective medical care. Most, however, will likely accept this as a necessary corollary of treatment. That approach would eliminate the need for litigation like Maureen's in the future, although it will offer little guidance to the judge in Harper's case.
Jacob M. Appel, MD, JD, is director of ethics education in psychiatry and a member of the institutional review board at the Icahn School of Medicine at Mount Sinai in New York City. He holds an MD from Columbia University, a JD from Harvard Law School, and a bioethics MA from Albany Medical College.
And check out some of our past Ethics Consult cases:
Tell Family About Corpse Mix-Up at the Morgue?