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We have been criticized for being unrealistic in our characterization of many medical business practices as criminal activities.[51] This view confuses actions with actors. Under the plain reading of the statutes and cases, many common medical business practices, including the structural arrangements of some managed care plans, violate various laws. This does not mean that the physicians and others involved in these plans are calculated criminals. The laws discussed in these articles do not require an intent to be a criminal. Persons who violate the technical provisions of these laws are committing crimes, even if they do so unknowingly and with unimpeachable intent.

We also do not believe that every medical business practice that is technically illegal will or should be prosecuted. There are prohibited practices that benefit patients and lower the costs of medical care. We do believe that physicians have been much too ready to compromise their fiduciary duties. This is not solely the fault of physicians. When the issue is put directly to physicians, as it was in the Supreme Court case upholding restrictions on abortion counseling in Title X clinics, most physicians believe that they have a fiduciary duty to protect their patient's interests:

Similarly entrenched in the common law and medical ethics are the responsibilities that flow from the trust on which the physician-patient relationship is based. "Because patients must be able to rely on their physicians to act in good faith and in their best interest," the common law treats the duties owed by doctors to patients as "fiduciary" in nature. Once having begun to serve a patient, a physician is ethically and legally obligated to speak honestly with that patient. In particular, physicians' "high ethical obligation to avoid coercion and manipulation of their patients" requires physicians to avoid "the withholding or distortion of information in order to affect the patient's beliefs and decisions."[52]

The problem is not so much physician ignorance as a failure of informed consent in the physician-attorney relationship. Many questionable medical business practices are the consequence of joint ventures and other business arrangements that were structured by attorneys. Most of these business deals were not clearly illegal at the time they were established. They were, however, clearly questionable, and some have subsequently been declared illegal. Yet few physicians were apprised of the risks of these deals. They relied on their attorneys' expert judgment, just as patients must rely on their physicians' expert judgment when consenting to medical care.

[51]Doherty JF Jr: Doctors' bills can come under RICO's scope. Nat L J 1989 Sep 25:12.

[52]Brief of the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the American Fertility Society, the American Medical Association, the American Medical Women's Association, Inc., as amici curiae in support of petitioners. Rust v. Sullivan, 111 SCt 1759 (1991).

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