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The Model Penal Code broadly defines the "benefit or consideration" as "gain or advantage, or anything regarded by the beneficiary as gain or advantage."
It is clear that incentive plans affect physicians' clinical judgment; physicians make different therapeutic decisions under incentive systems.[48] Under the technical provisions of most commercial bribery, this is illegal, irrespective of whether it harms the patient. If the incentive denies patients care that they would otherwise have received, it is illegal under all the state commercial bribery laws. The test is whether the fiduciary duty is breached when viewed from the patient's perspective, not the plan's. Violating a state commercial bribery statute is a predicate act for RICO only if the statute provides for imprisonment for greater than one year. Several states specifically prohibit physician incentives under their commercial bribery laws and provide for imprisonment for more than a year. In these states, physician incentive plans are clearly predicate acts for RICO. Some states do not specifically mention physicians in their commercial bribery statutes but prohibit bribing physicians. These states have case law that defines a physician as fiduciary. Even in states that do not directly criminalize physician incentives under a commercial bribery statute, a plaintiff can argue that the model penal code prohibitions on bribing physicians are evidence that incentive plans violate the physician's common law fiduciary duty. These breaches of the physician's fiduciary duty can be the basis for mail and wire fraud, which are predicate acts for RICO. [48]Hemenway D; Killen A; Cashman SB; Parks CL; Bicknell WJ: Physicians' responses to financial incentives. N Engl J Med. 1990; 322:1059-63.The Climate Change and Public Health Law Site
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