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THE FIDUCIARY RELATIONSHIP

The physician-patient relationship is a member of a special class of legal relationships called fiduciary relationships. Through the creation of fiduciary duties, the law recognizes that there are relationships in which the parties inherently have unequal power. In the words of one court:

[T]he physician-patient relationship has: ... its foundation on the theory that the former [physician] is learned, skilled and experienced in those subjects about which the latter [the patient] ordinarily knows little or nothing, but which are of the most vital importance and interest to him, since upon them may depend the health, or even life, of himself or family. [T]herefore, the patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of the physician.[29]

The essence of the fiduciary relationship is that the patient's interests must be paramount. This is in contrast to the usual legal rule of caveat emptor ("let the buyer beware"). In most businesses, the law assumes that there is an arms'-length transaction: the buyer and the seller have, in theory, the same access to information and the same bargaining power. For example, a merchant in a retail store encourages customers to buy the items that have the greatest profitability for the store. The merchant may not lie about the goods but is allowed to puff: to volunteer only favorable information and to make reasonable overstatements of the products' virtues. In contrast, the physician is expected to recommend treatments based only on the patient's medical and psychological needs.

Physicians should be familiar with fiduciary duties from the literature on informed consent to medical treatment. The fiduciary duty extends to all aspects of the physician-patient relationship. Breaching the financial aspects of the fiduciary duty to a patient can subject the physician to liability under commercial laws. Understanding the factors that make the physician-patient relationship a fiduciary one will help physicians recognize potential violations.

[29]Witherell v. Weimer, 421 NE2d 869 (1981).



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