Doctor-Celebrity Confidentiality: Does It Even Exist?

Aug. 29, 2008 — -- Mostly, it's a pretty good deal to be rich and famous in America — unless you come down with a dread disease and someone leaks your medical information. What do you do? What can you do?

As Christina Applegate discovered last week, the options are limited.

She is just the latest celebrity to find her medical troubles in a tabloid. Patrick Swayze, Britney Spears, Tom Cruise and Katie Holmes, Dennis Quaid, George Clooney, Farrah Fawcett — all in recent years have seen information from their medical records, or those of loved ones, spread in the press and on the Internet — without their permission and sometimes in violation of the law.

Sometimes leaks stem from happenstance.

"I've been at the doctor's office and had another person in the waiting room call and report that I was there — I think it's appalling," says actress Jennifer Garner.

But often celebrities suspect that medical personnel or loved ones have been lured by money to share intimate details. In a celebrity-mad culture in which stars' medical problems have high news value and tabloids have deep pockets, the people's right to know about Swayze's pancreatic cancer or TomKat's baby sonogram or Clooney's injuries in a motorcycle accident trumps celebrities' right to keep their medical records private.

Unsurprisingly, celebrities, their publicists and their lawyers are bitter, even though there's nothing new about this: Elizabeth Taylor's many medical crises have been tabloid fodder for decades. What's new now, they say, is the increased public appetite for any celebrity news, the increased competition to get that news and the cash some outlets wave to entice people.

"Every time you think the bar can't get any lower, it gets lower. It's beyond outrageous," says publicist Ken Sunshine. "This is way, way over the line and indefensible in a civilized society."

Blair Berk, a Los Angeles lawyer who has represented many celebrities, says no one should have to give up all rights to privacy just because he's famous.

"Somehow, none of the traditional boundaries of civil conduct seem to apply," Berk says. "It's not whining for someone who is famous to believe they can see their physician in private and not assume it's going to be published."

What to do? Celebrities can insist the leaker be prosecuted or sue the outlet that paid for and published the leak for invasion of privacy. Both would take a long time, cost a lot of money, perpetuate the leak and even force more disclosures of records. They might not win, and the story of their medical condition will live forever on the Internet.

Or they could do what Applegate, 36, did, which was go public. One day after the tabloid National Enquirer reported the Emmy-nominated star of Samantha Who? had had a double mastectomy, Applegate was on "Good Morning America" gamely discussing the procedure.

Aside from showcasing Applegate's pluck, her appearance brought new attention to the option of prophylactic mastectomies for millions of women who have a history of breast cancer.

But would she (or anybody) otherwise volunteer to discuss her medical condition on national television? Maybe. But after announcing on Aug. 9 that she had breast cancer and vowing then not to make any further statement, someone in a position to know about her treatment told the Enquirer, which routinely pays for information.

Applegate could have denied the story or ignored it. Or she could try to take control of it.

"She should be commended for the way she's handled this," says Los Angeles entertainment lawyer Martin Singer, who represented Celine Dion in 2000 when she sued the Enquirer for $20 million for a story that she was pregnant with twins. (The story was retracted, and the tabloid apologized and donated money to charity.) "I can't say that everyone should do what (Applegate) did — it depends on each celeb. Sometimes the story is true but exaggerated. Sometimes you don't want to concede the story is true."

It's illegal under federal law for a health care worker to disclose any person's records without authorization, says Chicago lawyer Deborah Gersh, who specializes in cases involving the 1996 Health Insurance Portability and Accountability Act.

Employees at UCLA Medical Center recently were caught snooping in dozens of celebrities' records. Several, including doctors, were fired or disciplined this year, and one has been indicted on charges of selling information to the media.

But the law applies only to workers with access to medical records. "The National Enquirer (or any publication) is not a covered entity; it has no legal responsibility to protect that information, even if they paid for it," says Gersh.

Enquirer editor David Perel failed to return repeated calls, but he did comment in the Aug. 22 edition of The New Republic on the John Edwards affair story and acknowledged that the paper pays for information — but only if it's found to be true. "We do it the way cops pay tipsters and informants," he said.

Journalism ethics expert Kelly McBride, who teaches at the Poynter Institute journalism think tank, gives the Enquirer credit for tenacity but low marks for ethics and credibility because paying for information taints it, she says.

"This is a follow-the-money question — there's more money in the celebrity market, so there's more money available to entice people to illegally release records," McBride says. "Medical information about a celebrity has very little public value — it's mostly for titillation and entertainment purposes."