by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July/August 1995 issue of the Journal
Question: I am concerned about one of my patients, whom I have diagnosed as having oral cancer. This patient is a 19-year-old female who has been made aware of her oral condition. In that her parent's are also my patients, I asked her whether she has informed her parents and if not, could I?
She adamantly refuses to tell them, and will not allow me to tell them. Am I bound by patient confidentiality or may I inform her parents of her oral condition?
If I am bound by patient confidentiality, could one of my dental assistants inform the parents? Technically, I would not then be breaking patient confidentiality. If I did, what legal sanctions could I be subject to?
Answer: The patient is 18 years or older, and is therefore not considered a "minor" under the law. Since the oral cancer condition was discovered as a result of the dentist's diagnosis, care and treatment of the patient, and pursuant to the delivery of professional dental services, the information is legally confidential and privileged. Except with the written consent of the adult patient, the dentist must not disclose this information, even to the parents of the 19-year-old patient. There are specific legal exceptions to the dentist-patient privilege, such as disclosure in defense of a malpractice claim, pursuant to a peer review proceeding, in relation to a claim for payment of fees, to a third party payor of information relating to fees, or disclosure pursuant to a court order. Since none of these apply, the dentist is legally precluded from disclosing the oral cancer diagnosis.
The law protecting patient confidentiality extends not only to the dentist but to any person employed by the dentist. Therefore, the dental assistant is legally precluded from informing the parents, and the dentist could be held responsible if the employee breached the privilege of confidentiality.
A violation of the dentist-patient privilege is a violation of the Public Health Code. Such a violation could constitute unprofessional conduct, involving either the betrayal of a professional confidence, or a violation of the express provision of the Public Health Code.
Either one of these violations could result in discipline, which could run the gamut from a reprimand to licensure suspension.
Since this would relate to professional conduct, such a licensure suspension would be reportable to the Data Bank. In addition, it is possible that the patient would have a civil cause of action for damages against the dentist for violating the dentist-patient privilege and the patient's legal right of confidentiality.