As a fiduciary, the physician has the legal duty to act on behalf of the patient. There have always been financial conflicts between physicians and patients, but they were of a different type than those that arise in the MCO setting. Physicians in private practice treating patients with traditional indemnification health insurance had an incentive to overtreat and perform unnecessary procedures. This is reflected in informed consent litigation. The pre-MCO cases are about whether a patient had enough information to consent to treatment. The post-MCO cases deal with whether the patient was informed that the physician had an incentive to deny treatment. Although unnecessary treatment can be bad for the patient, it is philosophically different from a denial of treatment when denial of treatment is invisible.

When a physician recommends unnecessary treatment, the patient must be apprised of the indications for the treatment, the possible side effects, and the availability of alternative treatments. This acts as a check on the physician’s financial interest in providing unnecessary care. When treatment is denied due to regulations or incentives provided by the MCO, the patient is not given a chance to balance the risks and the benefits of the forgone treatment. The check provided by informed consent is gone, and there is nothing to take its place. The physician is in a legally dangerous position because failure to provide the care may be found to be medical malpractice.