Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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.]
a) Training and Licensure
Physicians are fiduciaries because of their knowledge and their license. The
physician has power over the patient by virtue of greater knowledge gained through
training and experience. The physician must complete many years of professional
training before being allowed to practice medicine. This training is available to only
a small number of individuals in the population, and it consumes many societal
resources. This contributes to the societal policy that physicians should not take
advantage of patients by virtue of their superior knowledge. Even more important to
this policy is the limitation of the right to practice medicine to persons with this
professional training.
The medical license carries with it five rights: the right to diagnose illness, the right
to treat that illness by medical means, the right to prescribe drugs, the right to
supervise nonphysician practitioners in the provision of medical services, and the
right to collect fees for medical services provided by oneself and others. Some of
these rights are shared by other licensed medical care practitioners, but taken
together they give the physician a unique monopoly position in medical care
delivery. In return for these rights, particularly the unique right to prescribe drugs,
society expects physicians to exercise concern for the interests of patients. If
licensing and knowledge were the only sources of power in the physician–patient
relationship, there would be no need to extend this fiduciary duty to physicians in
need of medical care. In fact, the duty owed to physicians in need of medical care is
only slightly less than that owed to laypeople because the law recognizes other
factors that affect the bargaining power of the patient.
b) Market Factors
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