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37 Washburn L.J. 283 (1997-1998)
Doctor's Dirty Little Secrets: The Dark Side of Medical Privacy

handle is hein.journals/wasbur37 and id is 313 raw text is: Doctors' Dirty Little Secrets: The Dark Side of Medical Privacy Barry R. Furrow* INTRODUCTION We tend to accept uncritically the value of generic privacy rights in American jurisprudence. We live in a culture steeped in autonomy and laced with paranoia about government surveillance and corporate snooping. The concept of privacy in academic discourse has often assumed a status larger than life as protector of all things holy.' And privacy is certainly important: it is a desirable end state and a precondition for identity, allowing individuals to achieve desirable ends such as autonomy and solidarity with peers; it protects the vulnerable from exposure. The uses of privacy may also be less than admirable: we can manipulate others through their ignorance of our secrets, denying them knowledge that would discredit if disclosed (the hidden collision damage in the car I am selling; the commercial pilot's cocaine use during flights; your HIV-positive status). Recasting private information as secrets moves our understanding toward a sense of the illicit, the impermissibly hidden. Secrets in our common usage are double-edged, while we tend to view privacy as an unalloyed good. Medical secrets, perhaps more than most secrets, are double-edged and often deadly. The arguments for medical secrecy, so often couched as protection of confidentiality, must be examined to see if they withstand scrutiny. Privacy rights may therefore represent little more than a grant of right to privacy holders to control strategic secrets about themselves, secrets withheld to get someone else to act in a particular way. If the motivation for hiding information is to deceive, then privacy protects fraud. Is there any good reason to let people have property rights in secret information about themselves that will discredit them if revealed?2 In the abstract, the answer is clearly no. In the medical * Professor of Law and Director, Health Law Institute, Widener University School of Law; B.A., 1967, Harvard College; J.D., 1971, Harvard Law School. I. Edward Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. REv. 962 (1964); Charles Fried, Privacy, 77 YALE L.J. 475 (1968). 2. A law and economics analysis argues that protecting such rights would be economically inefficient and wasteful of scarce resources. Kronman has also argued that even if disclosure

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