The ability of patients to trust physicians to act in their best interests is a critical aspect of a welfare-maximizing relationship. This commentary discusses physician trustworthiness within the framework of the Affordable Care Act and considers steps to reinforce trustworthy behavior.
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References
1.
29 U. S. C. § 1104(a)(1).
2.
This understanding of ERISA would have enabled the Supreme Court to avoid its tortuous reasoning in Pegram v. Herdrich, 530 U.S. 211 (2000).
See, e.g., M. G.Bloche, “Scandal as a Sentinel Event – Recognizing Hidden Cost-Quality Trade Offs,”New England Journal of Medicine374, no. 11 (2016): 1001-1003.
9.
Most recently, M. J.Mehlman, “Can Law Save Medicine?”Journal of Legal Medicine36 (2016): 121-157, and M. J. Mehlman, “Why Physicians Are Fiduciaries For Their Patients,” Indiana Health Law Review 12, no. 1 (2015): 1-63.
10.
Crispell v. Dubois, 4 Barb. 393, 395-96, 1848 WL 5096 (N.Y. Gen. Term 1848) (“as in this case, the alleged will was prepared by an individual standing in a fiduciary relation to the deceased, and who took a large benefit under the will, more was required than bare proof of the execution….that as the plaintiff had long acted as the agent and confidential adviser of the deceased, and as her physician, and was attending her in that capacity….”).
11.
Pegram v. Herdrich, 530 U.S. 211 (2000); Neade v. Portes, 739 N.E.2d 496 (Ill. 2000); D.A.B. v. Brown, 570 N.W. 2d 168, 171 (Minn. Ct. App. 1997); Shea v. Esensten, 107 F.3d 625 (8th Cir. 1997).
12.
Shea v. Esensten, supra note 12 at 627.
13.
Pegram v. Herdrich, 530 U.S. at 235 (“for all practical purposes, every claim of fiduciary breach by an HMO physician … would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians”); Neade v. Portes, 739 N.E.2d at 501-502 (quoting Pegram); D.A.B. v. Brown, 570 N.W.2d at 171-172 (since a kickback scheme complained of in this class action “was dependent on medical diagnosis, treatment, and care of the patients,” the class was merely suing for malpractice for failing to obtain patients' informed consent).
14.
A claim for breach of fiduciary duty is complaining about disloyalty, while a malpractice action is complaining of lack of competence. See J. C.Shepherd, The Law of Fiduciaries (Toronto: Carswell Co., 1981): at 49(“the duty of care has absolutely no necessary connection with fiduciary relationships”).
15.
The common law rather than equity.
16.
See E. H.Morreim, “The Clinical Investigator As Fiduciary: Discarding A Misguided Idea,”Journal of Law, Medicine & Ethics33, no. 3(2005): 586-598, at 589(“ … If the entrustor can prove that his fiduciary is in a conflict of interest, the law will presume that the fiduciary abused his power or exploited the entrustor, and thereby will place on the fiduciary the burden of proving he did not.”); K. Johnston, “Patient Advocates or Patient Adversaries? Using Fiduciary Law to Compel Disclosure of Managed Care Financial Interests,” San Diego Law Review 35 (1998): 951-992, at 962-963 (“In light of fiduciary law's protective function, many courts have also created special rules to help plaintiffs in these cases. These special rules recognize the fact that the ‘law watches with the greatest jealousy transactions and dealings between persons occupying a fiduciary relationship.’ For example, courts often reverse the normal rule that the plaintiff has the burden of proof in a civil case and hold that, once the plaintiff has shown that a fiduciary relationship exists, the defendant has the burden of disproving its breach. Many courts also hold that the existence of a fiduciary relationship gives rise to a presumption of fraud or undue influence that can only be rebutted by clear and convincing evidence.”).
17.
T.Frankel, Fiduciary Law (New York: Oxford University Press2011): at 249-260(describing accounting for profits, constructive trusts, injunctive relief, and the availability of punitive damages).
18.
See Mehlman, “Can Law Save Medicine?” supra note 9, at 139-142.
19.
Id., at 149-150.
20.
See M. A.Hall, “The Legal and Historical Foundations of Patients as Medical Consumers”Georgetown Law Journal96, no. 2 (2008): 583-597, at 583.
