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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