Vol 22, 2013 Annals of Health Law 398
DUTY TO WARN OF THE RISK OF HIV/AIDS
warranting such expectation. In clinical practice, information which a
physician acquires by virtue of the existence of a physician-patient
relationship may not be divulged to a third party without the consent of the
patient or his duly authorized representative.86 Commentators trace the
origin of this duty to Hippocrates, the father of modern medicine.87 From
physicians, the Hippocratic Oath – the oldest ethical code and upon which
most modern medical codes of ethical conduct are based – explicitly
requires: “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.”88 Authoritative today as in ancient Greece, this
principle is definitive of the environment that guides physician-patient
relationship from initial consultation until cessation of the relationship.
Several rationales undergird the principle. First, an understanding that
what is said in the course of a therapeutic relationship is to be used solely
for the benefit of the patient creates an environment that facilitates frank
and open discussion of the totality of the patient’s circumstances. Without
this protection and the comfort zone it creates, patients would be on
constant guard as to the kind of information they share about themselves.
This sometimes leads to less candid relationship, with detrimental
consequences for the patient. The assurance that patient information is
secure with the physician is crucial to the healing process. The more
information a patient is willing to disclose, the better informed the
physician is about his or her condition, placing the physician in a better
position to provide appropriate therapy.
The second justification for confidentiality is prevention of harm that
might result to the patient should his or her medical history fall into wrong
hands. There are numerous conditions that people suffer from which they
would like to be kept secret out of concern about adverse consequences that
might befall them should the condition become known. This is particularly
86. Doe v. City of New York, 15 F. 3d 264, 267 (2nd Cir. 1994); Campbell v. MGN
Ltd.,  2 A. C. 457 (H.L.) (The House of Lords accepted that medical information is
confidential in nature).
87. Martha Swartz, Is There a Duty To Warn?, 17 HUM. RTS. 40, 42 (1990).
88. Ludwig Edelstein, CROSS-CULTURAL PERSPECTIVES IN MEDICAL ETHICS 4 (Robert M.
Veatch ed.,2nd ed. 2000). This quote could however be read as mere declaration against
gossip, without developing a specific and clear ethical duty on confidence. CHALMERS, supra
note 6, at 60. Modern ethical codes have, however, developed more lucidly defined
ethical duties of confidence. AMERICAN MEDICAL ASSOCIATION, CODE OF MEDICAL ETHICS
CURRENT OPINIONS WITH ANNOTATIONS §§ 5.00-5.09 (1997); See generally World Medical
Association, International Code of Medical Ethics (2006), available at http://www.wma.net/