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
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.