A. Definition

A. Definition

In South Carolina State Bd. of Med. Examiners v. Hedgepath,² the South Carolina Supreme Court determined that a physician has an ethical obligation not to reveal a patient's confidences when the revelation is neither compelled by law nor consented to by the patient. The duty to maintain confidences is independent, said the court, of whether the professional can be legally compelled to reveal some or all of those confidences. In other words, the absence of a testimonial privilege that prohibits certain in-court disclosures does not preclude a tort action for breach of confidence, because any evidentiary privilege is distinguishable from a duty of confidentiality.³ The Court did not address whether breach of a duty of confidentiality would be actionable as a separate tort,⁴ but in McCormick v. England,⁵ the Court of Appeals held that South Carolina recognizes a "cause of action for a physicians breach of duty of confidentiality." The court limited its decision to the case before it and those arising after the date the opinion was filed, November 17, 1997.⁶

Breach of confidentiality is related to, and/or overlaps with, several other causes of action from which it needs to be distinguished. Chief among these is invasion of privacy. As one commentary notes, the aspect of invasion of privacy that concerns public disclosure of private facts most closely parallels breach of confidentiality.⁷ McCormick acknowledged that there "may be some overlap" between the two, but said that should not preclude recognition of an independent tort for physician's breach of confidence since the actions are distinguishable.⁸ The court then observed that:

Invasion of privacy consists of the public disclosure of private facts about the plaintiff, and the gravamen of the tort is publicity as opposed to mere publication. The defendant must intentionally reveal facts which are of no legitimate public interest, as there is no right of privacy in public matters. In addition, the disclosure must be such as would be highly offensive and likely to cause serious mental injury to a person of ordinary sensibilities.
Thus, an invasion of privacy claim narrowly proscribes the conduct to that which is 'highly offensive' and 'likely to cause serious mental injury.' This standard is not consistent with the duty attaching to a confidential relationship because it focuses on the content, rather than the source of the information. The unauthorized revelation of confidential medical information should be protected without regard to the degree of its offensiveness. The privacy standard would not protect information that happens to be very distressing to a particular patient, even though the individual would likely not have revealed it without the expectation of confidentiality.⁹

McCormick also noted the relationship of a duty of confidentiality to other causes of action, including breach of implied contract, medical malpractice,¹⁰ and breach of a fiduciary duty,¹¹ but did not explain the differences between those actions and breach of confidentiality. An earlier commentary explored the distinctions between breach of confidentiality and breach of either contract — express or implied¹² — or fiduciary duty. The author said that breach of confidence seems to borrow from breach of contract and fiduciary duty, but actually represents a shift in the definition of the underlying wrong because the latter focus on the breach, while former is concerned with the...