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Jacob M. Appel Headshot

Dr. Coburn's Peculiar Privilege

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I will be the first to confess that medical ethics is not the world's raciest profession. However, now that Senator John Ensign's extramarital love life and his efforts to cover up his affair with staffer Cynthia Hampton have once again become front page news, any future investigation into this romantic caper may depend upon the boundaries of an essential, albeit rather mundane, principle of physician-patients relations: confidentiality.

This will prove the case if, as promised, Senator Tom Coburn of Oklahoma sticks to his June 9, 2009, pledge not to reveal to prosecutors the details of his private conversations with Senator Ensign. Coburn, who was previously a licensed physician in Oklahoma and provides pastoral care in his local Baptist church, told Roll Call that he was counseling his colleague "as as a physician and as an ordained deacon." As a result, his advice to Ensign "is privileged communication" that he "will never reveal to anybody. Not to the [Senate] Ethics Committee, not to a court of law, not to anybody."

While I cannot speak to the professional tenets and obligations of the Southern Baptist Conference, a matter way above my theological pay-grade, I am deeply concerned by Senator Coburn's claims to physician-patient privilege in this matter. Unless there are additional circumstances unknown to the public--which Senator Coburn then has a duty to reveal to investigators, to justify his invocation of medical confidentiality--his assertion of a professional duty to withhold information is a direct assault upon the genuine privileges and responsibilities of medical providers.

The duty of physicians to keep the confidences of their patients dates back at least 24 centuries. According to the Hippocratic Oath:

Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.

As a practicing physician myself, I can confirm the general utility of such a rule: Patients are far more willing to share the intimate details of their private lives when they have confidence that their doctors will not post those details on Facebook. Such open communication is not merely essential to building trust within the physician-patient relationship, but also ensures that doctors have enough information to provide quality care. Knowing that a patient polishes off five shots of whiskey before work each morning might not be a habit that he wants shared with his employers, but it will certainly shape how his illness is managed in a hospital.

However, medical confidentiality is not absolute. Courts and professional associations have consistently held that in matters of public welfare--from reporting of child abuse and gunshot wounds to exposing the conduct of impaired colleagues--physicians have an overt duty to serve the communal good, an imperative that transcends any obligation to individual patients.

Most modern commentators accept this flexible and utilitarian understanding of medical confidentiality. That may be why nearly every jurisdiction that has recognized a physician-patient privilege not to testify in court, either by statute or though case law, has confined the privilege to knowledge acquired during the course of providing medical services.

The principle of confidentiality is not a "Get out of Jail Free" card for physicians who, having acquired knowledge outside of their work as doctors, do not wish to offer testimony. I cannot simply declare that, because I am a physician, all the advice that I offer to friends and family is privileged. What I tell my patients at the hospital may be protected from judicial scrutiny. What I tell my buddies on the golf course or at the pool hall, on the other hand, is fair game for prosecutors--even if I happen to have M.D. license plates and a caduceus pin on my lapel. Otherwise, any mobster worth his salt would send his consigliere to medical school rather than law school.

Failure to distinguish personal from professional conduct is not merely injudicious. By asserting a confidentiality privilege in purely social matters, physicians trivialize these time-honored protections. This is particularly so in matters where the general public may not know or understand the generally-accepted rules of medical ethics.

An analogy can be drawn to the classic films of Hollywood's Golden Age, such as Ball of Fire with Barbara Stanwyck and Dana Andrews, in which a gangster attempts to convince or coerce a woman into marriage so that she will not be permitted to testify against him. Filmgoers eat this stuff up, legal inaccuracies and all. The reality is that such marriages merely allowed wives not to testify--but never prohibited them from doing so. Similarly, the public may hear Senator Coburn speak of a privilege "as a physician" and assume that the canons of law and medical ethics favor his position, when they do precisely the opposite. The public may also not be aware that such a privilege, when it does exist, can always be waived by the patient. Senator Ensign has the discretionary power to release Coburn from any duty of confidentiality that he might believe he has.

The crucial question, of course, is whether Senator Coburn was actually practicing medicine while advising Senator Ensign. Circumstantial factors strongly suggest that he was not. In the first place, Senator Coburn was a specialist in obstetrics and gynecology. While psychiatric or ethical advice given to an obstetrics patient during the course of care might merit an assertion of privilege, such wisdom offered outside the confines of other treatment seems highly suspect. (I will discount the remote possibility that Senator Ensign is actually a biological female, a Congressional Billy Tipton, although I concede such a revelation might undermine my argument.)

Coburn's medical offices were also located in Muskogee, Oklahoma. Now it is indeed possible that Senator Ensign did travel there for medical care. I cannot prove otherwise. However, why a 50-year-old man from Nevada would seek medical care from an OBGYN in Oklahoma is the sort of question that reasonably begs public scrutiny.

More likely, the advice that Senator Coburn gave his friend and fellow housemate regarding how to handle the financial demands of his lover's husband is the only "treatment" that Ensign ever received. That sort of interaction, however intense and private, does not even remotely approach the threshold of a physician-patient relationship. I can think of plausible arguments as to why Senator Coburn's counsel should remain private, most notably that we might want to live in a nation where common decency prevents friends from having to testify against each other.

Alas, our society has not yet adopted that rule. Instead, we have adopted a much narrower rule that applies only to doctors. Asserting physician-patient privilege for personal purposes does as much harm to the medical profession as trying to skip the line in a restaurant or avoid a parking ticket on the basis of one's medical service.

Debunking Senator Coburn's claims to physician-patient privilege in this matter may actually prove to his benefit. Alternatively, if he is engaged in the practice of medicine while advising his colleagues and others, he may find investigators pursuing a set of questions having nothing to do with Senator Ensign: namely, how extensive is Dr. Coburn's conduct of this nature within the District of Columbia, where he does not appear to hold a license to practice medicine? Is it significant enough to be either ethically objectionable or even criminal? The danger of asserting privileges is that they often come with unwelcome responsibilities.

I should emphasize that I could not care less with whom Senator Ensign has been sleeping. To my thinking, it is somewhat reassuring to know that at least one member of the United States Senate still has the capacity to fall in love on impulse. Nor am I particularly concerned whether Ensign and Douglas Hampton conspired to violate lobbying rules. Having rules for lobbying, I've always thought, is a bit like having guidelines for torture.

What troubles me deeply is that Senator Coburn, who was by all accounts a fine physician, has mistakenly invoked a cherished principle for political expediency. He should know better. As important, the public ought not be fooled. A white coat is not a cloak of automatic immunity from testimony--not in the Senate, not in court, not anywhere. Especially when you're not even wearing it.

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