Medical confidentiality as a patient right

Medical confidentiality is a right of the patient, not an obligation of the doctor, according to the Public Health Code. Patients have the right to the respect of their privacy and the confidentiality of information concerning them.

Ethical and legal standards

The medical code of ethics states that confidentiality applies to all doctors and covers everything they have learned, seen, heard, or understood. Its violation is a criminal offense, punishable by one year in prison and a 15,000 euro fine.

Control over personal health information

The victim is the master of her health information and can produce it herself. The communication of this information by a third party, including a doctor, requires her consent.

Insurance and medical information

After a traffic accident, the insurer can request the victim's identity, occupation, income, and a description of the injuries accompanied by a copy of the initial medical certificate. The victim's medical history is not on this list.

Confidentiality in medical exchanges

Health information is intended to circulate from doctor to doctor. The insurer's doctor is bound by confidentiality like any practitioner and has no need to question the victim's treating doctor.

Legal procedures for medical reports

The law organizes the circulation of the result of the medical examination. The insurer must inform the victim at least fifteen days before the examination and send the report to the insurer, the victim, and the doctor who assisted her within twenty days.

Limitations on confidentiality

The benefits paid since the accident are a normal part of the file, which the fund communicates in the context of its recourse. The previous history falls under confidentiality, and no one can compel the victim to deliver it.

Judicial expertise and confidentiality

The useful path is a reasoned selection, conducted with her advisory doctor. Medical expertise is the moment when tension reaches its peak. The parties must submit to the expert the documents he considers necessary, and the court can draw consequences from their failure to communicate.

Judicial limitations

However, the judge cannot force the lifting of confidentiality. Since 2004, the Court of Cassation has ruled that in the absence of specific legislative provisions, the civil judge cannot compel a doctor to transmit information covered by confidentiality when the person concerned or her heirs oppose it.

Confidentiality in legal proceedings

The insurer's doctor cannot lift it on behalf of the victim. The one who transmits to the judicial expert the friendly expertise report without the victim's authorization violates professional confidentiality.

Professional sharing of information

The Council of State has ruled that the sharing of information covered by confidentiality between professionals not belonging to the same care team requires the prior consent of the person.

Court decisions on confidentiality

Two recent decisions have clarified the balance. The insurer may produce in court the friendly expertise report despite the victim's opposition, provided that this production is essential to the exercise of her right to proof and that the breach of confidentiality is strictly proportional to the goal pursued.

Expert's role in confidentiality

The expert is not entitled to obtain the entire medical file when the victim opposes it. The judge assesses the legitimacy of this refusal.

Victim's control over information

The victim keeps the initiative: her consent is required, it is current, and applies to a given instance. However, her refusal has a price if it concerns elements related to the damage she invokes: the judge will see it as a way to exclude the evidence.

Confidentiality in legal representation

A refusal focused on what is unrelated to the accident protects a legitimate interest. The expert himself is bound by discretion: in his report, he must only reveal the elements necessary to answer the questions asked.

Legal presence during examination

The clinical examination conducted during a judicial expertise is covered by medical confidentiality. The victim's lawyer cannot require to attend, even with the client's agreement, who cannot renounce in advance the confidentiality of medical elements still unknown.

Confidentiality and employer access

The lawyer remains present at the reception, anamnesis, the collection of complaints, the restitution of the findings, and the medical-legal discussion. Medical confidentiality applies only to healthcare professionals, so the presence of the insurer's representative at the expertise operations is not prevented, except for the victim's clinical examination.

Pre-existing conditions and compensation

The victim's right to compensation cannot be reduced because of a pre-existing pathology when the condition that resulted from it was caused or revealed only by the damaging act.

Legal distinctions and consequences

Only a previous state that was already producing its effects and was handicapping the victim before the accident can be deducted, and only for its part. A silent fragility, an arthritis that did not bother, or an old healed episode does not reduce anything.

Consequences of hiding medical history

Hiding what concerns the injuries is a losing bet, for three reasons: the antecedent almost always resurfaces, the silence discovered calls into question the sincerity of the entire story, and it weakens the agreement reached.

Settlement and legal principles

A settlement is a contract, and constitutes dol the intentional concealment by one of the contracting parties of information that he knows to be determinative for the other. A settlement obtained by concealing a decisive antecedent is exposed to annulment.

Legal preparation of medical history

A known antecedent is prepared: the lawyer who learns about an old work stoppage at the first meeting can, with the advisory doctor, establish its nature, duration, and healing, and defuse the argument before the insurer seizes it.

Advisory doctor's role

The victim's doctor, an ally bound by the same confidentiality, cannot be the expert of his own patient. He gives his certificates and reports to his patient, who decides their use.

Legal and medical collaboration

The victim's advisory doctor prepares and defends. Mandated by her, he receives the entire file, analyzes it, accompanies her to the expertise, and criticizes the adverse report. He is bound by confidentiality like any practitioner.

Workplace accident and medical access

The tandem he forms with the lawyer is the practical answer to all the questions in this article: the doctor sorts what is related, the lawyer decides what is produced. The employee victim of a work accident faces a particular concern: the employer who disputes the coverage, the rate of incapacity, or who defends an inexcusable fault will access her medical file.

Medical file access by employer

The employer never accesses directly the health of his employee; he accesses it through an intermediary doctor. The advisory doctor of the medical control service transmits the entire medical report that formed the basis of his decision to the medical authority charged with examining the prior recourse, without confidentiality being opposed to him.

Autopsy report and insurance

At the request of the employer, this report is notified to the doctor he mandates, and the victim is informed of this notification. The Court of Cassation ensures that this communication follows the only medical route provided for by the text: the employer cannot obtain the report directly from the advisory doctor.

Autopsy and legal procedures

The same logic has led to a remarkable reversal in the case of a fatal accident. The autopsy report is an element covered by medical confidentiality, which the fund does not have to communicate to the employer during the processing of the file.

Legal access to medical documents

The employer who disputes the professional nature of the death can request the judge to appoint an expert, to whom the medical documents will be handed over. The initiative for the autopsy belongs to the fund and the heirs.

Insurance and health questionnaires

The request for recognition formed by these latter does not amount to a lifting of confidentiality. In the case of an action for recognition of an inexcusable fault, the medical expertise ordered by the judge follows the rules outlined above: the employer is a party, but his doctor, like that of the insurer, can only obtain what the victim is willing to produce, under the control of the judge.

Insurance contract and health disclosures

Facing her own insurer, under the terms of a life accident insurance, a life insurance policy, or a loan insurance, the situation is reversed: the victim is bound by a contract, and she has answered the health questionnaire at the time of subscription. This questionnaire binds.

Consequences of false disclosures

If the insured has deliberately omitted or misrepresented an antecedent that changed the insurer's opinion on the risk, the insurer can obtain the nullity of the contract, even if the antecedent is unrelated to the accident. The jurisprudence requires that the false statement result from answers given to specific questions, and it is up to the insurer to prove the bad faith.

Insurance contract and legal consequences

In the absence of this, it can only reduce the indemnity in proportion to the premiums paid compared to those that would have been due. The landmark ruling of 2004 was precisely made in this context: a loan insurer sought to establish that a disease predated the subscription, and the deceased's widow opposed the communication of the file held by the occupational doctor.

Legal assessment of information refusal

The judge could not compel this doctor; it was up to the judge of the case to assess whether the opposition aimed to protect a legitimate interest or to exclude an element of evidence, and to draw the consequences regarding the execution of the insurance contract. The refusal remains possible, but it can cost the guarantee.

Confidentiality when the victim cannot speak

When the victim can no longer speak: coma, guardianship, death. The secret belongs to the victim. But who exercises it when she can no longer do so?

Confidentiality and incapacitated victims

Victim in a coma. In case of a serious diagnosis or prognosis, confidentiality does not prevent the family, close relatives, or the person of trust from receiving the necessary information to provide direct support to the victim, unless she opposes it.

Legal access for incapacitated victims

This information does not, however, open access to the file. To obtain the documents necessary for compensation, it is necessary that a protection measure entrust a close relative with the representation of the victim for acts relating to her person.

Confidentiality for minors and protected persons

Protected victim or minor. The person entrusted with a protection measure with relative representation to the person has access to health information under the same conditions as the victim herself. For a minor, the right of access is exercised by the holders of parental authority, subject to the minor's opposition for the treatments she has wished to keep secret.

Confidentiality for deceased victims

The person of trust, on the other hand, has no right of access to the file solely on that basis. Deceased victim. Confidentiality does not prevent the heirs, the concubine, or the PACS partner from obtaining the necessary information to know the causes of death, defend the memory of the deceased, or assert their rights, unless the deceased expressed an opposing will before her death.

Legal access for deceased victims

The request must specify the reason, and only the documents useful to this reason are communicated. For the close relatives who claim compensation for their own damages or exercise the victim's action, the reason is to assert their rights, and the file is first used to establish the link between the accident and the death.

Key points to remember

In summary: the landmarks to keep in mind. Can the insurer of the responsible party require my antecedents? No. What the law owes him is the description of the injuries and the initial medical certificate; the previous history is sorted with her advisory doctor.

Legal limits on judicial requests

Can the judge oblige me to communicate my file to the expert? No, but he assesses the legitimacy of the refusal and draws the consequences. Can the insurer's doctor hand over an old report to the expert? Not without my agreement.

Insurance and legal production of documents

The insurer can, on the other hand, produce it in court if it is essential to his proof and if the breach of confidentiality remains proportional. Who attends the clinical examination? Only the doctors: neither my lawyer nor the insurer's representative.

Disclosure of antecedents

Should I speak of my antecedents? Of those that concern the injuries, yes, after having prepared them; of those that are unrelated, no. A previous state that did not hinder before the accident does not reduce the compensation.

Legal disclosure to lawyer

Should I tell my lawyer everything? Yes. He is bound by professional confidentiality and can only defend what he knows. Can my employer read my file? Not directly: through the doctor he mandates, and I am informed; the autopsy report remains closed during the investigation.

Insurance and health questionnaires

And my own insurer? The health questionnaire signed at the time of subscription binds me. Medical confidentiality is not an obstacle to compensation. Well handled, it protects the victim from the exploitation of what does not concern the accident, without exempting her from proving what does.

Preparation for legal proceedings

Everything is played before the expertise: sort with her advisory doctor, tell everything to her lawyer, never answer from memory.