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CONCLUSIONS

Physicians must determine if any of their business practices breach their fiduciary duty to their patients or are otherwise legally improper:

1.
All physicians must personally read the safe harbor regulations and the accompanying preface by the OIG.

2.
They must determine their state's laws on physicians as fiduciaries. This includes commercial bribery laws and cases holding that the physician is a fiduciary.

3.
If the attorney who drafted or reviewed their medical business arrangements did not provide full information about the potential risks of these arrangements, they must request this information.

4.
If they did receive a disclosure of risks, they must ask their attorney if the safe harbor regulations have modified these risks.

5.
If they are in a noncomplying deal, a written opinion on the specific problems and how they might be remedied is needed.

6.
If they feel they were not properly advised of the risks when entering into the arrangement, they should consider getting a second opinion from an attorney who was not involved with the original attorney or the original deal.

Physicians must educate themselves about the problems of financial conflicts of interest with their patients. Conflicts should be avoided when possible and disclosed when they cannot be avoided. In some cases, such as the disclosure of the selection criteria for physician referral services, disclosure is legally required. In all cases, there is an ethical duty to disclose interests in medical care businesses and other potential conflicts of interest.

The nature of the fiduciary relationship is such that disclosure does not cure conflicts of interest. The physician-patient relationship is a fiduciary relationship precisely because patients must rely on their physician's integrity. Disclosing a conflict of interest does not help the patient avoid the effects of the conflict. Disclosure can show good faith but will not make an improper activity legally acceptable.

Managing conflicts of interest poses a profound ethical problem for physicians and for the rest of society. They underlie questions about appropriate termination of life support, access to care for indigents, and many other critical medical care problems. If physicians and their attorneys continue to ignore the significance of financial conflicts of interest, they should not be surprised by ever more draconian laws regulating medical business practices.


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