To Warn or Not to Warn? Genetic Information, Families, and Physician Liability

Abstract

Genetic testing raises a number of legal issues. Physicians providing genetic testing may be faced with questions related to privacy, confidentiality, and the duty to warn. Because genetic information is by its very nature familial, genetic test results may have implications for others not privy to the particular physician-patient relationship. This can result in a legal and ethical quandary for the treating physician. This paper addresses questions with respect to genetic testing and the legal obligations of physicians. First, can a physician legally breach doctor-patient confidentiality to inform a family member of a genetic risk? Second, does the physician have a duty to warn the interested third party of that risk? And if the physician fails to warn that party, could s/he be found liable? These questions are addressed here in a comparative fashion, examining Canadian (and, where appropriate, American) common law as well as Quebec civil law. The paper concludes that physicians should be liable for the duty to warn in the context of genetic information only when the risk is serious, imminent, and avoidable.

Keywords

• genetic testing
• confidentiality