74 SW3D 719 - Stidham v. Clark

KELLER, Justice,

¶1concurring.

¶2I concur fully in the majority opinion, and I write separately only to eliminate any confusion I may have helped foster through my previous suggestion that Kentucky law governing the practice of medicine may create a general physician-patient privilege.1 While I agree with the majority opinion that no testimonial •privilege exists in Kentucky for communications made between patient and physician for the purpose of medical treatment, I would still characterize such communications as confidential because “physicians ... have an ethical obligation not to disclose information regarding their patients, except with consent or pursuant to an obligation imposed by law or court order.”2

¶3In Kentucky, the State Board of Medical Licensure has, under its statutory authority to “[pjromulgate a code of conduct governing the practice of medicine and osteopathy, which shall be based on generally recognized principles of professional ethical conduct,”3 adopted the American Medical Association’s Code of Medical Ethics,4 including that Code’s provisions concerning patient confidentiality,5 and physicians licensed in the Commonwealth are subject to sanctions — including license suspension or revocation 6 — if they breach patient confidences.7 In my opinion, these provisions prohibit the extra-judicial disclosure by a physician of confidential patient communications and information8 unless such disclosure is otherwise authorized9 or required 10 by law.

¶4 *730However, I agree with the majority opinion that there is no physician-patient privilege in Kentucky that would shield information obtained through the physician-patient relationship from testimonial disclosure. Although the AMA Code of Ethics generally prohibits disclosure of confidential communications or information, it also includes the proviso “unless required to do so by law.” KRE 501 “embodies the general obligation to testify”11 and states that no person has a privilege permitting him or her to refuse to disclose any matter or information “[ejxcept as otherwise provided by Constitution or statute or by these or other rules promulgated by the Supreme Court of Kentucky.”12 Accordingly, physicians remain subject to this “general obligation to testify,” and no privilege exists to prevent disclosure of confidential patient confidences or information in the judicial forum.

¶5STUMBO, J., joins this concurring opinion.

¶6. See James E. Keller, Kentucky’s Physician-Patient Privilege, Fayette County Bar Association Bar News, January-February, 1991 at 6 ("[W]hen this issue is next addressed by a Kentucky appellate court, a physician-patient privilege may be recognized under the laws of Kentucky.”).

¶7. Richard H. Underwood & Glen Weissenber-ger, Kentucky Evidence: 2001 Courtroom Manual at 190 (Anderson Publishing Co.2000).

¶8. KRS 311.565(l)(j).

¶9. 201 KAR 9:005(l)(a).

¶10. American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics (1994) § 5.05:

Confidentiality. The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.

¶11Id.

¶12. KRS 311.595.

¶13. See KRS 311.595(16) (permitting the Medical Licensure Board to sanction a physician "upon proof that he licensee has: ... (16) Willfully violated a confidential communication. ...”); KRS 311.595(9); KRS 311.597(4).

¶14. See Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973).

¶15. See, e.g., KRS 311.282 (authorizing disclosure of positive human immunodeficiency virus (HIV) status under certain circumstances).

¶16. See, e.g., KRS 620.030(2) (requiring a physician to file a written report with law enforcement officers in cases of child abuse, dependency, or neglect).

¶17. Kentucky Evidence Rules Study Commission Commentary to KRE 501 (November, 1989).

¶18. KRE 501.