Welcome to Ethics Consult -- an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma from a true, but anonymized, patient care case, and then we provide an expert's commentary.
In the latest in this series, you voted on whether to report a patient's medical secrets to the U.S. Securities and Exchange Commission.
Yes: 14%
No: 86%
And now, bioethicist Jacob M. Appel, MD, JD, weighs in with an excerpt adapted from his book, .
Considerable variation exists regarding how much medical information U.S. business leaders disclose to shareholders. At one extreme, Google co-founder Sergey Brin announced in 2008 that he carries a genetic mutation linked to Parkinson's disease, increasing his hypothetical risk of the disorder at a distant point in the future. At the opposite extreme, Apple co-founder Steve Jobs went to great lengths to conceal his treatment for the neuroendocrine tumor of the pancreas that ultimately killed him in 2011.
Some high-profile executives have opted (as far as we know) for full and rapid disclosure of health issues: Harry J. Pearce of General Motors, Jamie Dimon of JPMorgan Chase, Berkshire Hathaway's Warren Buffett. In contrast, Kraft Foods initially refused to reveal the reasons behind then-CEO Roger Deromedi's medical leave in 2004 and Bear Stearns kept entirely silent about leader Jimmy Cayne's hospitalization for life-threatening sepsis in 2007.
Controversy exists over whether, and to what degree, grave illnesses among business luminaries must be reported to the Securities and Exchange Commission (SEC). Securities litigator Allan Horwich has argued that, at a minimum, under rule 10b-5.3 of the Securities Exchange Act of 1934, making a "deliberately false material statement about the health of a corporation's luminary" is unlawful; U.S. courts have largely arrived at the same conclusion.
While one can argue about the definitions of both "luminary" and "material," few would likely maintain that the declarations of Herman, the CEO dying of a brain tumor, have not crossed the statute's red line.
Yet the question in this scenario is not whether Herman has a legal duty to reveal his diagnosis to investors, but whether "Hawkeye Pierce, MD," is ethically permitted to share that diagnosis with the SEC. Both the federal government, through HIPAA, and many states limit the grounds upon which physicians may breach doctor-patient confidentiality to those in which the patient's conduct poses "a serious and imminent threat to the health or safety of an individual or the public."
Warning the probable victim of a violent crime, for instance, clearly falls under this exception; in fact, many states require doctors to attempt such a warning. Certain other exceptions are specified in federal law, such as those permitting doctors to report an escaped convict or a crime that occurs on their own premises. Barring such exceptions, physicians generally cannot breach confidentiality.
Whether a judge or jury would find Herman's dishonesty a serious threat to the public is uncertain but seems improbable. The fact that the confidential knowledge is medical in nature also favors maintaining confidentiality.
However, one can envision cases involving large-scale financial fraud where providers breaching doctor-patient confidentiality might have a more compelling case -- like a physician who might have turned in Ponzi schemer Bernie Madoff or the leadership of Enron. Interestingly, although state courts afford litigants a doctor-patient privilege, federal courts do not. If Herman is ultimately charged with a breach of securities law, Pierce may still be compelled to testify against him.
For the time being, society has decided that protecting trust between doctors and patients is, on the whole, more important than any social benefit to be gained by allowing breaches in cases of financial wrongdoing.
So legally, Pierce's hands are likely tied. Whether they should be, especially in the context of the various financial frauds exposed over the past decade, is a more challenging question. Of course, Pierce is certainly free to use his persuasive talents to convince Herman to disclose the truth himself. Alternatively, as long as Herman is able to obtain adequate medical care elsewhere, Pierce has every right to refuse to continue to treat him while he is perpetrating a fraud on the public.
Oh -- and in case you are wondering, it would be both illegal and unethical for Pierce to short-sell stock in Herman's company.
Jacob M. Appel, MD, JD, is director of ethics education in psychiatry and a member of the institutional review board at the Icahn School of Medicine at Mount Sinai in New York City. He holds an MD from Columbia University, a JD from Harvard Law School, and a bioethics MA from Albany Medical College.
And check out some of our past Ethics Consult cases:
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