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Introduction

Medical practice is rife with conflicts of interest between physicians and patients. Some conflicts, such as sexual relations with patients, are ages old. Others, such as managed care incentive plans, are new manifestations of the competitive marketplace for medical care services. In the past, individual physicians were free to make their own accommodations to the conflicts of interest inherent in practice. There have always been physicians who are driven by money, but this was a personal choice. The vast majority of physicians put patients' interests first, even if it reduced the physician's income. Now these ethical choices are dictated by medical care business. Physicians are forced to put the third-party payer interests first or be driven out of practice. Managing these conflicts is critical to the survival of medicine as a profession.[26]

This chapter reviews the physician-patient fiduciary relationship and the conflicts that it engenders. It is well established that patients can sue their physicians for breaching their fiduciary duties.[27] Despite this right, few patients have sued their physicians over fiduciary issues. We believe that the paucity of litigation stems from the nearly insurmountable legal impediments to patient-initiated litigation for breaches of fiduciary duty. While these impediments may protect physicians from suit by patients, it is not patient-initiated litigation that physicians should fear.[28]

A little-heeded corollary to medical care as a business is that medical businesses are subject to the same legal threats as other businesses. These include the antitrust laws (discussed in Chapter 18) and federal racketeering laws. Perhaps the greatest threat is the Medicare/Medicaid fraud and abuse law, as strengthened by the recent safe harbor regulations. Physicians often fail to study these laws, believing them to apply only to criminals. But many common medical business practices violate technical provisions of these laws. These violations can subject physicians to suit by other medical providers, third-party payers, and state and federal prosecutors.

[26]Bailey BJ: Somehow we have to stop the train wreck; Part 1. Arch Otolaryngol Head Neck Surg 1990 June; 116:669-70.

[27]Morreim EH: Conflicts of interest; Profits and problems in physician referrals. JAMA 1989; 262:390-94.

[28]Hyman DA: Conflicts of interest, continued (letter). JAMA 1990; 263:1199-1220.


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