Physicians as Fiduciaries
It is hard to imagine situations when one is more in the power of another than for treatment of serious illness and injury. In the words of one court,
[T]he physician-patient relationship has: … its foundation on the theory that the former [physician] is learned, skilled and experienced in those subjects about which the latter [the patient] ordinarily knows little or nothing, but which are of the most vital importance and interest to him, since upon them may depend the health, or even life, of himself or family. [T]herefore, the patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of the physician. [Witherell v. Weimer, 421 N.E.2d 869 (Ill. 1981).]
Nearly every state has case law holding that the physician–patient relationship is a fiduciary relationship. These cases are usually medical malpractice suits where on of the following questions may be posed: (1) Did the physician hide some negligent act to let the statute of limitations run?; (2) Did the physician provide the patient proper medical information about the patient’s condition in other than informed consent situations?; (3) Was there sexual misconduct by the physician?; (4) Did the physician breach the confidential relationship?; (5) Did the physician fraudulently conceal information such as leaving a foreign body in a patient after surgery?; and (6) Did the physician fail to obtain a proper informed consent? (The role of the physician as fiduciary in informed consent is discussed elsewhere.)
In addition to the case law holding that physicians are fiduciaries, the federal statutes and regulations implementing the Medicare and Medicaid programs have extensive provisions to protect independent medical decision making, and many states have adopted the commercial bribery section of the model penal code, which criminalizes financial incentives to affect physician decision making:
(1) A person commits a misdemeanor if he solicits, accepts or agrees to accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject as: ... (c)lawyer, physician, accountant, appraiser, or other professional adviser or informant; ...
(3) A person commits a misdemeanor if he confers, or offers or agrees to confer, any benefit the acceptance of which would be criminal under this Section. [Model Penal Code, § 224.8, Commercial Bribery and Breach of Duty to Act Disinterestedly.]