Illegality of doctor's act of leaking treatment information of a patient without prior consent

The following case includes two different lawsuits. An employee who had got injured during work at a company (hereinafter called "X") saw a doctor and received treatment at a hospital as well as filed a suit to claim damages against the company. Later, X also claimed damages against the doctor and hospital alleging that the doctor leaked treatment information of X to a contact person at the company, which caused X's mental distress.

The court stated that doctors shall not reveal patients' secret information which they may come to access in the course of duties without just causes and judged that the doctor's act of explaining X's treatment information to the company, against who X took a legal action on another case is illegal and that the doctor shall not be exempt from liability. (judgment by Kawagoe Branch of Saitama District Court on March 4, 2010)

• Page 112 of Hanrei Jiho No.2083

Summary of the case

Plaintiff:

X (patient)

Defendant:

Y1 (orthopedic hospital of a medical corporation Y)

Y2 (representative of Y1)

Parties concerned:

A (company for which X works)

B (contact person of A)

X got injured when working as an employee of company A. Then, X received a consultation and treatment by a doctor Y2 at a hospital Y1, while X filed a suit to claim damages against company A (another case).

After X filed a suit on the above case, a contact person B of company A visited Y2 and asked for cooperation for company A, which was about to request the court to commission the holder of the document (Y1) to send ¹ a medical record ² concerning the separate suit. Later, company A requested the court to commission the holder of the document (Y1) to send the document of all the X's medical records including those of medical examination and test results (e.g. radiograph, MRI) concerning the separate suit. The court decided to accept the request and commissioned Y1 to send the document. After being commissioned by the court, Y1 sent the document of medical records including MRI scans and radiograph to the court in charge of the separate suit.

Separately from sending the document, Y2 was visited by B several times and was asked to provide X's medical information. Y2 explained X's physical status, conditions of disease, treatment, etc. to B, although Y2 was not ordered by the court to do so.

X alleged that X suffered mental distress because Y2 had leaked X's treatment information to B and claimed 5,000,000 yen damages for pain and suffering against Y2 for breaching confidentiality and Article 23 of the Act on the Protection of Personal Information by leaking X's treatment information to a third party without obtaining a prior consent of X, and against hospital Y1 for default by breaching confidentiality as an accompanying duty under the treatment contract and for Y2's torts in the course of duties under Article 68 of the Medical Practitioners' Act and Article 78 of the Act on General Incorporated Associations and General Incorporated Foundations.

1. ¹ Procedure for requesting the court to commission the holder of the document to send the document (Article 226 of the Code of Civil Procedure)
2. ² Medical record which shall be stored for a period of 5 years under Article 24 of the Medical Practitioners' Act

Reasons

While physicians may access patients' secrets including physical status, disease conditions, treatment, etc. in the course of duties due to their nature of profession, they shall not disclose patients' confidential information including treatment information which has come to be known in the course of the profession without justifiable grounds.

While the above is physicians' professional ethics, it shall be construed unlawful disclosure of confidential information (Article 134 (1) of the Penal Code) when a physician "discloses another person's secret information which has come to be known in the course of profession without justifiable grounds".

1. Disclosure of treatment information without consent

It is acknowledged that Y2 communicated X's treatment information to B during a period from no later than the date for the forth oral argument and to the date for the first preparatory proceedings, although Y2 was not ordered to do so by the court in charge of another case. At least it is acknowledged as a fact that Y2 explained medical findings of X to B and informed B of Y2's opinion that X's rear protrusion of intervertebral disc was generated by aging. Since it is undeniable for Y that Y2 provided X's treatment information without prior consent of X, the act of Y2 constitute unlawful disclosure of X's treatment information.

Moreover, the court in charge of another case did not order Y to provide such information, so no reason is recognized to completely exempt illegality of Y2's act.

2. Act of sending the document in response to commission by the court

While it is recognized that Y2 sent the document to company A in response to commission to do so by the court in charge of another case, the act of sending the X's treatment record was performed in response to commission to do so by the court and fall under cases based on laws and regulations. Therefore, the act is allowed without obtaining consent from X (Article 23 of the Act on the Protection of Personal Information). In this case, X's treatment records including disease conditions and medical findings were provided in response to commission by the court in charge of another case, while X was filing a suit against company A on the ground that X's illness had been caused by workers' accident. In light of the intent of the commission, it is undeniable that sending of the X's treatment records was necessary and reasonable. It should be said that Y2's act is not illegal.

3. Act of explaining X's treatment information to company A in the course of preparing a list of treatment process

It is recognized that around the time when company A was ordered to prepare "a chronological table of medical treatment process" by the court in charge of another case, Y2 was visited by B and orally explained the meaning of illustrated portions and words on the table.

Although Y2 was told by B that the court on another case had ordered to prepare a chronological table of medical treatment process, it is not recognized that the court in charge of another case met Y2 and ordered Y2 to prepare the table of medical treatment process. Given that the above Y2's act started before the order by the court on another case, Y2's act of informing company A of the above fact is not justifiable.

4. Damages

It is not recognized that Y2 intended to damage X in performing the said act. In light of all the facts, 1,000,000 yen should be reasonable as damages to be paid to X.

Explanation

The right of privacy is protected against infringements like (1) peeping of private life, recording of images and sounds thereof without prior consent; (2) disclosure of personal information without prior consent. Recently it is also recognized as a right to control self-information, a more affirmative and enhanced right, which is protected against (3) providing personal information to the third party without prior consent.

The reference precedent (1), which affirmed the above right, is a case where personal information of students who had signed for a pre-registration style symposium (student ID number, name, address and telephone number) was provided to the police, which was in charge of the security of the symposium. Illegality was debated because the level of importance of the personal information was low and the act of providing the information was based on a just reason. While the original judgment denied illegality of the act, the Supreme Court recognized the act infringed "reasonable expectation for proper control of privacy information" because the police could ask the students at the time of registration if it is OK to obtain such personal information. Although the damages for pain and suffering were determined as 5,000 yen, which is low, this precedent is noteworthy as confirmation that this level of information is legally protected and that expectation for proper control of personal information is legally protected, while it is not a case of publicizing personal information.

In the reference precedent (2), the court denied illegality of an act of a condominium sales company, which had provided a condominium management company with information of purchasers (place of work, name and telephone number) based on a just reason, while the court recognized that information of "place of work, name and telephone number" should be kept as privacy interest which shall be legally protected.

The reference precedent (3) is a case where personal information of those who had applied for free trial and delivery of written materials on the website of a beauty salon was leaked on the internet due to a mistake of an employee of the beauty business. Secondary leak and damages occurred through direct e-mails and junk e-mails using the leaked information. The court ordered the beauty business to pay 30,000 yen or 20,000 yen damages for pain and suffering (the latter amount was determined for those who did not encounter secondary damages) and 5,000 yen for legal fees to the plaintiff under Article 715 (1) of the Civil Code.

The same goes for protection of patients' information under the medical contract. It is illegal for a medical institution to provide the third party with patient's information without his/her prior consent, which infringes privacy. In the reference precedent (4), disease condition of a patient who is a daughter of the plaintiff was communicated by a nurse of the hospital (the defendant) to her husband. The husband of the nurse told the plaintiff the above disease condition when visiting a restaurant run by the plaintiff as a customer. Then the plaintiff happened to know that the nurse told the disease condition of his daughter to her husband. The court affirmed fault of the nurse and employer's liability of the defendant, which was ordered to pay 1,000,000 yen damages for pain and suffering to the plaintiff.

In the case here, while it was not construed illegal to send the document in response to commission by the court, it was construed illegal that Y2 provided X's treatment information to the hospital, which is the defendant of the suit filed by X, without commission by the court, although Y2 was not intended to damage X. The court ordered the defendant to pay 1,000,000 yen damages for pain and suffering to the plaintiff. The amount of damages is reasonable in light of significance of privacy of medical information, although it is higher than other cases as that of the reference precedent (4).

Reference precedents

1. Judgment by the Supreme Court on September 12, 2003
   (Page 973 of Saiko Saibansho Minji Hanreishu Vol.57 No.8)
2. Judgment by the Tokyo District Court on August 29, 1990 (Page 92 of Hanrei Jiho No.1382)
3. Judgment by the Tokyo District Court on February 8, 2007 (Page 113 of Hanrei Jiho No.1964)
4. Judgment by the Fukuoka High Court on July 12, 2012 (LLI Hanrei database)