Doctor Patient Privilege on Resurrection

The Resurrection episode “Insomnia” provided an example of the doctor-patient privilege in action. In the story, Rachel, the newest person to return from the dead, is examined by the doctor Maggie Langston. The patient is pregnant and instructs the doctor not to tell the baby’s father, who is also a minister.

Would Dr. Langston have to keep that information confidential?

According, to Missouri case law and statutes, yes. However, there might be an exception.

Missouri has codified into statute that a doctor is “incompetent” to testify about “any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient…” § 491.060 R.S.Mo.

Case law also has long maintained that a doctor cannot testify about any information they learned while treating a patient as well. See, Holtzen v. Missouri P. R. Co., 159 Mo. App. 370, 376 (Mo. Ct. App. 1911).

The only statutory exception to the doctor-patient privilege in Missouri is in cases of suspected child abuse or neglect. § 210.140 R.S.Mo. and Pilger v. Pilger, 972 S.W.2d 628, 1998 Mo. App. LEXIS 1218 (Mo. Ct. App. 1998).

What does this mean for Dr. Langston whose patient is pregnant and who successfully committed suicide? Would this create a reporting situation to law enforcement of possible risk to the unborn child?

Many states have outlined specific situations where a health care provider can breach their duty of confidentiality where the patient is showing violent behavior that indicate an “imminent danger that the patient will use physical violence or use other means to cause serious personal injury or death to others.” Ind. Code § 34-30-16-1.

In Rachel’s case, she successfully committed suicide while two months pregnant. This puts Dr. Langston in legally untested waters. Missouri does not appear to have the “danger to oneself or others” exception to a doctor’s duty of confidentiality. However, it does have an exception for child abuse or neglect. There is no case law on whether attempted suicide, let alone successful suicide, would qualify as an exception in Missouri to an unborn child.

The closest case on point involved the duty to warn involving a child molestation victim. In that case, the Court held:

Specifically, we hold that when a psychologist or other health care professional knows or pursuant to the standards of his profession should have known that a patient presents a serious danger of future violence to a readily identifiable victim the psychologist has a duty under Missouri common law to warn the intended victim or communicate the existence of such danger to those likely to warn the victim including notifying appropriate enforcement authorities.

Bradley v. Ray, 904 S.W.2d 302, 312 (Mo. Ct. App. 1995).

If Rachel was being treated in California or Indiana, case law would see her as a risk to herself because she had already killed herself once. However, an argument could be made under the Bradley decision that Rachel poses a risk to her unborn child as a readily identifiable victim because of Rachel’s prior successful suicide, thus requiring reporting that a woman who returned from the dead is a danger to her unborn child.

All I know is I am glad the dead do not actually return to life with these very strange issues that our law does not contemplate.

 

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.