2) the broader legal duty of doctors to patients and others not to disclose information they obtain as doctors.
New York in 1826 and California in 1872 adopted statutes forbidding doctors from divulging in legal proceedings without the patient's consent any information they acquired concerning the patient during the course of his or her treatment. Forty one states currently have statutes which have that effect, either under state medical licensing laws or rules of evidence. Gostin says that "the patient-provider privilege, adopted in different forms in many states, plays a limited role in protecting privacy. It is typically a testimonial privilege, not a general obligation to maintain confidentiality." Such statutes, nevertheless, have sometimes been used to impose as a matter of public policy civil liability on doctors for violating a duty of confidentiality expressly or impliedly contained therein.
The first American case establishing an extra-judicial duty of confidentiality on physicians was Smith v. Driscoll, 162 P. 572 (Wash. 1917) in which the Washington Supreme Court said that "for so palpable a wrong [disclosure of patient confidential material] . . . the law provides a remedy." Friedland says that "the trend toward imposing civil liability gained momentum only in the 1960s." See, among others, Hammonds & Aetna Cas. & Sur. Co., 243 F. Supp. 793 (N.D. Ohio 1965).
The public policy concerns underlying the testimonial or evidentiary doctor-patient privilege and the imposition of civil liability for breach of confidentiality are similar, but in some respects different. The basic policy is that "patients seeking medical attention should be free to reveal private matters to their physicians without fear of unwarranted disclosure."
Some courts have expressed additional policy concerns with respect to the testimonial privilege. For example, in Piller v. Kovarsky the Court said: it is "necessary to secure the pati...