Question

HCP114 Medical Law and Ethics for Health Care Professionals

ch 10

Please read these case of Humphers v. Bank of Oregon. I think you will find it interesting. What laws and ethical principles are involved with this case. At the end the plaintiff lays out 5 complaints (I deleted them). What do you think at least 3 of them are?

Supreme Court of Oregon, In Banc. Argued and Submitted November 7, 1984. Decided March 6, 1985. Cynthia S.C. Shanahan, Portland, argued the cause for petitioner on review. With her on the briefs were Ridgway K. Foley, Jr., and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland. David J. Sweeney, Portland, argued the cause for respondent on review. With him on the briefs were Judith A. Scholz, Mark B. Weintraub and Gilbertson, Brownstein, Rask, Sweeney, Kerr & Grim, Portland. LINDE, Justice. We are called upon to decide whether plaintiff has stated a claim for damages in alleging that her former physician revealed her identity to a daughter whom she had given up for adoption. In 1959, according to the complaint, plaintiff, then known as Ramona Elwess or by her maiden name, Ramona Jean Peek, gave birth to a daughter in St. Charles Medical Center in Bend, Oregon. She was unmarried at the time, and her physician, Dr. Harry E. Mackey, registered her in the hospital as "Mrs. Jean Smith." The next day, Ramona consented to the child's adoption by Leslie and Shirley Swarens of Bend, who named her Leslie Dawn. The hospital's medical records concerning the birth were sealed and marked to show that they were not public. Ramona subsequently remarried and raised a family. Only Ramona's mother and husband and Dr. Mackey knew about the daughter she had given up for adoption. Twenty-one years later the daughter, now known as Dawn Kastning, wished to establish contact with her biological mother. Unable to gain access to the confidential court file of her adoption (though apparently able to locate the attending physician), Dawn sought out Dr. Mackey, and he agreed to assist in her quest. Dr. Mackey gave Dawn a letter which stated that he 528*528 had registered Ramona Jean Peek at the hospital, that although he could not locate his medical records, he remembered administering diethylstilbestrol to her, and that the possible consequences of this medication made it important for Dawn to find her biological mother. The latter statements were untrue and made only to help Dawn to breach the confidentiality of the records concerning her birth and adoption. In 1982, hospital personnel, relying on Dr. Mackey's letter, allowed Dawn to make copies of plaintiff's medical records, which enabled her to locate plaintiff, now Ramona Humphers. Ramona Humphers was not pleased. The unexpected development upset her and caused her emotional distress, worry, sleeplessness, humiliation, embarrassment, and inability to function normally. She sought damages from the estate of Dr. Mackey, who had died, by this action against defendant as the personal representative. After alleging the facts recounted above, her complaint pleads for relief on five different theories:

Answer 1

The states which have held that there is a civil recovery for violation of the confidential relationship between physician and patient in the absence of a specific statute are Alabama, Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973); Illinois, Geisberger v. Willuhn, 72 Ill. App.3d 435, 28 Ill.Dec. 586, 390 N.E.2d 945 (1979); New Jersey, Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962); New York, Doe v. Roe, 93 Misc.2d 201, 400 N.Y.S.2d 668 (1977), and Washington, Smith v. Driscoll, 94 Wash. 441, 162 P. 572 (1917). In addition, a federal district court has held, under the law of Ohio, that such recovery is available. Hammonds v. Aetna Casualty and Surety Company, 243 F. Supp. 793 (N.D.Ohio 1965).

A holding that no private right of action exists for violation of the physician-patient confidential relationship in the absence of statutory authority has been made by the state court in Tennessee, Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965), and by federal courts in the District of Columbia, Logan v. District of Columbia, 447 F. Supp. 1328 (1978), and Georgia, Collins v. Howard, 156 F. Supp. 322 (1957).

[2] The Hippocratic oath states, in pertinent part:

"Whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret."

Principle 9 of the Medical Ethics Code states:

"A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community."

[3] All of the other types of invasion of privacy listed in the Restatement require publication beyond the very limited publication alleged in this case.