DIFFERENCES IN MEDICAL AND LEGAL DUTIES: THE DOCTOR-PATIENT AND
In part 2, the similarities and differences in the duties and obligations of doctors and lawyers to their patients and clients, respectively, under the doctor-patient and attorney-client relationships are explored. The right of patients to prevent the disclosure in legal proceedings of confidences acquired by their doctors and their corresponding private rights of action with respect to unauthorized disclosures have developed slowly and unevenly. They are today subject to various limitations and exceptions. In contrast, the duty of lawyers to maintain the confidence of client communications to them and the privilege of their clients to prevent such disclosures in court have been well-established for more than two centuries. The different legal treatment accorded the doctor-patient and the attorney-client relationships is rooted in differences in the nature of their duties to their patients/clients and to society and the deep interweaving of the attorney-client relationship into the fabric of the Anglo-Saxon adversarial system of justice. Nevertheless, under modern conditions, the nature of these duties and the corresponding privileges are changing, principally in response to the increased corporatization of the practice of medicine and law and other developments which have caused tension between the rights of individuals and society.
Traditional Bases for Confidentiality
All privileges not to give testimony in legal proceedings, such as the doctor-patient, attorney-client, penitent-priest, husband-wife and the right against self-incrimination, are exceptions to the general rule which Wigmore expressed as follows: "the public has a right to every man's evidence." In Nixon v. Administrator of Public Services, supra, the Supreme Court said: "these exceptions [privileges] to the demand for every man's evidence are not lightly created nor expansively construed, fo...