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Professional Confidentiality in Jewish Law
Daniel Eisenberg, M.D.


Professional Confidentiality in Jewish Law

Daniel Eisenberg, M.D.

When a patient has a medical condition that will endanger others, should the doctor tell?

A physician discovers that a married male patient has an HIV infection. The man begs the physician not to tell his wife. The patient insists that the physician-patient relationship demands complete confidentiality. The physician is uncertain of what course to take, not sure whether the physician-patient relationship must yield to the duty to warn others.

What would the rabbi say to do?

In the secular world, confidentiality is included in the category of professional ethics, such as the attorney-client privilege and the physician-patient relationship. We commonly assume that a doctor may not divulge information about a patient to a third party because of the unique role of the physician in society.

Judaism, however, approaches the divulging of information about others (particularly harmful or derogatory information) as a breach of Torah law which is binding on everyone, unrelated to profession. The Torah strictly limits disclosure of private information to a third party, even though the information is true and no malice is intended, regardless of how or where the information is obtained. The result is a code of professional and personal confidentiality that is generally stricter than its secular counterpart.

Nevertheless, Judaism recognizes situations in which disclosure of confidential material is required.

The Torah writes: "Do not go as a tale-bearer among your people, do not stand idly by the blood of your neighbor..." (Leviticus 19:16). Why are these two apparently unrelated concepts included in one biblical command? Two reasons are given for the juxtaposition of the two phrases.

First, the spreading of "tales" about one's acquaintances is equated with shedding their blood, since serious harm may arise from the disclosure of private information. Engagements may be broken, relationships shattered, and business partnerships dissolved, all because of gossip. This is the reason for the almost absolute ban on rechilut (tale-bearing).

CONDITIONS OF DIVULGING

The second reason these phrases are placed together is to teach that while there are two separate obligations -- confidentiality of communications, and protecting others from harm -- they are nevertheless intricately related. Because of the potential damage that may occur if pertinent information is not disclosed, the Code of Jewish Law explains that one may not keep a confidence if doing so will lead to harming someone. In such a case one must divulge secrets.

The book "Chafetz Chaim," by Rabbi Yisrael Meir Kagan (20th century Poland) is the classic Jewish work on the laws of speech, dealing primarily with the prohibitions of forbidden types of speech (Loshon Hara). At the conclusion of the book, the author delineates the situations in which confidences must be broken. He explains that a third party is obligated to warn a person who is planning to enter into a partnership which the third party believes will prove harmful.

This applies whether his friend is entering a business partnership with a thief, hiring an unscrupulous worker, or entering into a marriage with someone who has a hidden serious illness. In all cases, regardless of how one acquired the information, one must warn the party who potentially will be injured -- because the prohibition of "standing idly by the blood of your neighbor" applies to any case where one could, but does not, stop someone else from being harmed. This consideration almost always outweighs the duty of confidentiality.

It is important to note that before using this exemption, the following conditions must apply:

- The information must be objectively true, not a matter of taste or opinion.

- You must have first-hand information, not hearsay.

- You can have no ulterior motive or personal gain from what you say.

Finally, if it is possible to prevent harm to the third party without betraying the confidence, that is the required path.

THREAT TO SOCIETY

In the area of medicine, these issues most commonly arise when a physician discovers information about a patient that is potentially harmful to a third party or to society. As in our case, if a physician ascertains that a patient has an HIV infection, he is obligated to inform the patient's spouse of the possible risk of infection. Obviously, this must be done with care and compassion, but nevertheless, it must be done. The physician-patient relationship must yield to the duty to warn others.

Two recent rabbinic rulings have dealt with issues of confidentiality where members of general society are placed at risk by the keeping of professional confidences. In a ruling that mirrors American law, Rabbi Ovadia Yosef, former Chief Rabbi of Israel, rules that a physician must report a patient with epilepsy to the proper authorities so that his driver's license will be suspended. The threat that the patient poses to the unsuspecting public outweighs the patient's right to privacy.

Rabbi Yitzchak Zilberstein, another contemporary Israeli legal authority, rules that an ophthalmologist must report a patient even with borderline poor eyesight to the department of motor vehicles for similar reasons. Interestingly, Rabbi Zilberstein writes that even if the physician believes that the patient's eyesight poses only a remote risk of danger to the public, he must report his findings. He explains that society has a right to establish laws to protect its citizens, even if the chosen criteria are very strict.

PROTECTING THE PHYSICIAN

Revealing professional confidences may have consequences for the physician as well as society in general. A physician who develops a reputation for releasing confidential information may find himself without patients. For this reason, Jewish law recognizes that the needs of the physician to protect his livelihood must be weighed against the potential danger to a third party or society if the information is not released.

Therefore, in certain instances of potentially great harm to the physician, the physician may be allowed to forego informing a third party of potential harm -- in order to protect himself!

It is important to note that both society and the individual patient benefit from professional confidentiality. Judge Clark of the California Supreme Court wrote in his dissenting opinion to a case of psychiatric confidentiality in 1969: "First, without substantial assurance of confidentiality, those requiring treatment will be deterred from seeking assistance... Second, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment..."

There are also rabbis who cite precedent to protect privileged information despite potential harm to others. They believe that halacha recognizes the need of society to have "safe" venues for people in need of confidential counseling, and that this need outweighs the needs of the individuals who might thereby be harmed.

The final decision of which concept takes precedence in a given case often requires the decision of a competent halachic authority.

INFORMING THE SPOUSE

So what of our physician with the HIV positive patient? It is important to understand that from a halachic perspective, Chafetz Chaim teaches that the obligation of someone with information that could prevent harm to a third party is not to reveal the information per se, but rather to protect the innocent third party. In our case, this means that the physician is not necessarily obligated to reveal the patient's diagnosis, but to ensure that the patient's spouse is alerted to the danger. That is, philosophically, the physician has no obligation to inform the wife of the true diagnosis, so long as the physician is convinced that the wife is protected from harm.

Since HIV is not a very contagious virus and the couple has presumably been living together for a long while, a short delay in informing the spouse is probably acceptable. As long as the patient agrees to inform his spouse, the physician may give the man a short time to decide how to tell his wife. Nevertheless, the physician must be sure that the spouse is actually protected.

For example, were the husband to be incarcerated at the time of diagnosis, there would presumably be no reason for the prison physician to reveal the diagnosis to patient's wife. (However, the prison doctor would have to worry about any contacts at risk in the prison.) If the husband is living with the spouse, there would probably be no practical way to protect the wife without revealing the diagnosis or creating a scenario where she finds out for herself.

Merely giving some other reason why he can no longer cohabit with her (or share bodily fluids in any other way), such as a different contagious disease, would be impractical, but not conceptually forbidden. In this case, it is likely that the only way to ensure the wife's protection would be to inform her of the diagnosis.


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Author Biography:

Dr. Daniel Eisenberg is with the Department of Radiology at the Albert Einstein Medical Center in Philadelphia, PA and an Assistant Professor of Diagnostic Imaging at Thomas Jefferson University School of Medicine. He has taught a weekly Jewish medical ethics class for the past 10 years. He moderates the monthly Jewish medical ethics study group at Albert Einstein Medical Center and lectures internationally on topics in Jewish medical ethics.


This essay first apppeared on the Aish Hatorah website at this location:
http://www.aish.com/societyWork/work/Professional_Confidentiality_in_Jewish_Law.asp
It is re-posted here with the permission of the author and aish HaTorah.
Dr. Eisenberg may be reached through his web site locted at:
www.daneisenberg.com or at eisenber@pol.net.

Posted to JLaw.com on July 8, 2003


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