But because implied contract has to be proven in each case, there’s no guarantee for the patient that he or she will have it.Another legal definition is based on fiduciary theory, which arose out of contractual relationships where one party was particularly vulnerable and unable to protect itself against a breach. For example, if the physician’s primary role is to prolong life, confidentiality should be breached when the disclosure would serve to prolong life, or the failure to disclose would shorten life. Disclosing this information would prolong his or her life, but it might also prolong suffering.In fact, quite a lot of personal information is not protected at all.
In some ways, the fiduciary model makes sense in the medical setting — the patient is clearly a vulnerable party. These are the kinds of questions that are important to consider, and difficult to answer using legal theories of confidentiality.
But in reality, physicians do not fit into the fiduciary model so well as they often have responsibilities to promoting the health of the broader population in addition to the specific patient, and fiduciary theory is not so easily applied when determining how and when confidentiality should be waived. Since neither contract nor fiduciary theory provides clear guidance in defining the scope of confidentiality protections, perhaps we should think about general privacy protections, like those found in the federal or state constitutions, or in common law, in order to address confidentiality.
Fiduciary theory would state that it should be to benefit the vulnerable party. Privacy is usually thought of as a "fundamental" right, and there are a variety of legal protections that may fall into this category, like protections of one’s home, body, and personal information.
The problem is that personal information (which is what’s at stake with medical confidentiality) is not protected at law in the same way one’s home or bodily integrity is protected.
The second issue, which stems from the first, is under what circumstances confidentiality should be broken.