By David Cmelik
Most people realize that the Hippocratic Oath basically requires that physicians and other health care professionals “do no harm.”
However, very specifically, the oath requires that:
“What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about.” A second translation reads, “I will keep secret and will never reveal.” Therein arguably derives the origin of the confidential doctor-patient relationship. In Iowa, it is codified at Iowa Code § 622.10. Interestingly, that section was strengthened ostensibly to shield the doctor-patient privilege against Iowa criminal defense attorneys who seek to pierce the privilege to obtain material relevant to a theory of defense. However, the section does not appear to distinguish criminal defendants and State witnesses. Or so it seems. The tension, of course, between the confidential relationship and the desire to prevent harm elsewhere can be palpable but—as an Iowa criminal defense attorney I assert—only if there is an actual, imminent risk of prospective harm in the future.
I have had anecdotal experience with professional prosecution witnesses who fall under the statutory confidential privilege. That experience was this: knee-jerk reporting even where the threat of harm has subsided—that includes patients who report child sex abuse on alleged victims who are no longer children and those no longer living with the accused. In contrast, under the civil Tarasoff standard, there is no professional duty to break privilege in Iowa unless there a prospective, imminent harm. Anthony v. State, 374 N.W.2d 662, 669 (Iowa 1985)(citing Thompson v. County of Alameda, 27 Cal. 3d 741, 759, 614 P.2d 728, 738, 167 Cal. Rptr. 70, 80 (1980)). Case law supports the proposition that the scope of the duty to breach confidentiality turns on the foreseeability of harm to a person likely to be injured in the future—not some purported harm in the past. Leonard v. State, 491 N.W.2d 508, 511 (Iowa 1992); Fiala v. Rains, 519 N.W.2d 386, 389 (Iowa 1994)(holding that plaintiff produced no evidence of pending danger to impose duty to disclose harm); see also Wilson v. Darr, 553 N.W.2d 579, 584 (Iowa 1996)(“The record is clear that Taylor did not learn of the alleged child abuse until after it had ceased”). As an Iowa criminal defense attorney, I will ask tough questions of purportedly mandatory reporters in Iowa child sex abuse cases—especially those whose confidence is supposed to be protected by an oath that goes all the way back to ancient Greece. A blog is not legal advice. Reading a blog does not establish an attorney-client privilege. Sending information over the Internet to a lawyer with whom a prospective client has not yet established such a relationship may not be privileged.
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