There Are No Secrets....

It's Friday and it's time to creep you out....sort of.
Hopefully, all of you have a doctor of one kind or another. A general practitioner, an orthopedic surgeon, an optometrist, whatever. If you don't, here's my dose of non-legal advice- go get one. Everyone needs to keep an eye on their health. And now that I am done playing den mother....

Florida recognizes that your conversations with physicians are confidential. You know, every time you go to a doctor and they ask you all those personal and sometimes embarrassing questions that you wouldn't answer if anyone else asked you, the answers you give are not to be disclosed. Your physician has no right to disclose the answers you give or any other information about you to anyone, ever....unless you give the doctor permission.

Florida has even made information exchanged between you and your doctor a distinct privilege in litigation. You may know what I am talking about. Watch Boston Legal or Law and Order or any other show that has lawyers and judges in it and you will hear that conversations between a client and lawyer are "privileged," meaning that they cannot be revealed. Same thing with doctors. A doctor cannot be compelled by legal process to divulge any information about you.

Here's the creepy part....sort of. Remember how I wrote "unless you give the doctor permission"? Well, you may think, I am never giving permission to any doctor to ever discuss anything about me, ever. I don't want people to think I'm crazy or weak or stupid or have diseases that would impugn my virtuous character (you know what I'm talking about you pretend puritans). But, hold on to your seats, there may be situations where you have a real Hobson's choice about giving that permission.

Never, you say? Ok, let's suppose you get into a car accident and you injure any number of body parts. You sue the driver of the other car. Guess what that driver gets to find out - the name of every physician you have seen for any reason in the last 10 years before the accident, the reason you saw the doctor and the number of times you saw him or her. Don't bother fighting it. The Florida Supreme Court says this is ok. They even drafted the question your adversary gets to ask you to get this information.

Once you identify these doctors, what you saw them for and how many times you saw them, your adversary will ask you to sign a release that requires you give permission to get and examine your medical records. No way, you say. Why I saw a psychiatrist in 2001 has nothing to do with the injuries I suffered when I broke my neck or hurt my back or tore my knee in 2008. On the surface, that sounds pretty good. But, as a practical matter, your adversary will likely get this stuff. Defendants argue that medical and mental health history is important to understand what your condition was like on the day of the accident and to really be able to measure what sorts of damages you suffered as a result of the accident and what such damages will be going into the future.

Sounds crazy, right? You got hurt and somehow you now have to allow examination into some potentially very private stuff to recover. Sure, there is a confidentiality that exists, but you have to waive it once you put your physical condition in issue.

It's a strange and hard choice to make. A lot of the stuff can never be used at trial, but that doesn't mean that the defendant can't look at it first. And once they read it, you know that someone other than you and your doctor know some pretty intimate details about you. For ethical reasons, I cannot tell you what I have found over the years. But, suffice it to say, we live in an era where privacy is the new frontier and I know things about people I don't know very well that I am pretty sure their mothers and their children know nothing about. It's intriguing and disquieting at the same time.

In the next several years, it seems that privacy will be a huge area of regulation and litigation in this country. We see it setting on already - illegal wire taps, identity theft, Internet police traps designed to catch pedophiles, corporate accountability lawsuits. Your most private information can readily become part of the public domain and all you had to do was get hurt in an accident and try to recover your damages. So, on this Friday I say, drive carefully and be aware that, as Shakespeare once wrote (and I paraphrase), a secret can only be kept by three when two are dead.