When is health data personal and when is it not?

Patient-physician confidentiality is a long held principle. Although the US Federal Rule of Evidence 501 does not specifically refer to this confidentiality, these rules of evidence provide that it “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience”.

The concept of patient-physician confidentiality derives from English common law, and has been codified in many state statutes. It is a principle that all physicians are sworn to uphold in the Hippocratic oath, which provides:

WHATEVER IN CONNECTION with my professional practice or not in connection with it I may see or hear in the lives of my patients which ought not be spoken abroad, I will not divulge, reckoning that all such should be kept secret.

But, when do “reason and experience” not side with patient-physician confidentiality?

Recently, CMS proposed a new rule that would allow organizations that meet certain qualifications access to patient-protected Medicare data to produce public reports on physicians, hospitals and other healthcare providers. This rule would “measure the performance of providers and suppliers in ways that protect patient privacy”.

Sounds good.  After all, this rule would supposedly identify which physicians and hospitals provide the highest quality, most cost-effective care to patients, and who would not want that? Or, would you balk at having your patient information (even if stripped of identifying information) used in such a manner?

Or, what if your pharmacist took this same information (again stripped of identifying information) and sold it so that pharmaceutical companies could know what doctors are prescribing what drug and in what quantities? This, for example, is the issue in the lawsuit Sorrell v. IMS Health Inc., which is before the U.S. Supreme Court.

When is health data personal and when is it not? Where would you draw the line?

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