For several decades, federal and state courts alike have acknowledged the fiduciary nature of the physician-patient relationship. In a fiduciary relationship, one party depends upon the other, trusting the other to act in his or her best interests. These relationships exist when the dependent or more vulnerable party delegates power to the fiduciary so that the fiduciary may act on her behalf.
Physicians have specialized knowledge and expertise. They also control the use of medical resources needed by patients: only they can admit patients to hospitals, order diagnostic tests, and prescribe drugs. Patients are often ill or anxious about their health, which increases their dependence. The patient-physician relationship presupposes patients entrusting physicians to act on their behalf and physicians remaining loyal to their patients (Hanson MJ, Callahan, 1999).
Central to the notion of fiduciary duty is the recognition of the potential for the fiduciary to experience divided or conflicting loyalties. Fiduciary law seeks to resolve these conflicts by mandating priorities for the fiduciary in the event of a conflict (Munson, 1981). The current structure of the U.S. healthcare system generates a host of fiduciary challenges for physicians, virtually all of which relate to forces that compete with doctors' obligations to their patients. In the managed care setting, conflicts arise when physicians must act as gatekeepers, minimizing patients' access to expensive tests or contacts with medical sub-specialists. More dramatic conflicts exist in "gag clause" contracts, which prohibit physicians from advising patients about alternative courses of action not offered under the patient's insurance package (Pellegrino, 1999). Additional fiduciary challenges arise in the area of confidentiality, when a physician may have a moral, or even a legal, duty to inform a third party about her patient's private medical condition. Finally, one finds fiduciary conflicts in obstetrical medicine, when doctors threaten to undermine their....
