Patients as Consumers - Harvard Law School

MLR 106-4 Edit Format Document Hall Mich L Rev.doc
them? Normally, no, 207 since “[w]ere the duty of loyalty really to
require fiduciaries to act exclusively in the interests of their
beneficiaries, it would set a standard of conduct no one could hope to
meet.” 208 Consequently, physicians’ or hospitals’ fiduciary duties
conventionally “relate only to the provision of care and not the
payment therefor.” 209
207. But cf. Maxwell J. Mehlman, The Patient-Physician Relationship in
an Era of Scarce Resources: Is There a Duty to Treat?, 25 Conn. L. Rev. 349,
356 (1993) (“[T]he courts virtually without exception have rejected the
proposition that patients and physicians should be allowed to bargain over
the terms of their relationship.”). Elsewhere in his article, Prof. Mehlman
recognizes that
[t]he issues are not that simple . . . . For example, the
physician certainly is permitted to accept a fee from the
patient. Yet the patient would arguably be better off if she
could obtain the care for free. By charging a fee, the physician
might be said to be placing his own interests above those of the
patient. However, this does not necessarily constitute a
violation of his fiduciary duty.
Id. at 371.
208. Paul B. Miller & Charles Weijer, Fiduciary Obligation in Clinical
Research, 34 J.L. Med. & Ethics 424, 435 (2006).
209. DiCarlo v. St. Mary’s Hosp., No. 05-1665, 2006 WL 2038498, at *9
(D.N.J. July 19, 2006); see also Wright v. Jeckle, 144 P.3d 301 (Wash. 2006)
(finding that fiduciary duty is not breached when a physician charges more
than cost for a prescription drug). The only express holding to the contrary
we are aware of is Greenfield v. Manor Care, Inc., 705 So. 2d 926, 932 (Fla.
Dist. Ct. App. 1997), abrogated on other grounds by Beverly Enterprises-
Florida, Inc. v. Knowles, 766 So. 2d 335 (Fla. App. 2000), which ruled that a
nursing home has a fiduciary duty not to overcharge a patient. See also Havsy
v. Wash. Dept. of Health Bd. of Osteopathic Med. & Surgery, No. 53198-1-I,
2004 WL 2153876, at *4 (Wash. Ct. App. Sept. 27, 2004) (upholding the
decision of regulatory agency (licensing board) that a physician “breached
his fiduciary duty to [a patient] by failing to inform [the patient] of the
high cost of [a diagnostic test] and of the risk that [the patient’s] insurer
might not cover the . . . cost [of the test]”).
Some courts suggest that providers must help patients obtain insurance
reimbursement. E.g., Murphy v. Godwin, 303 A.2d 668, 673–74 (Del. Super. Ct.
1973) (finding a legal duty to assist patient with completing insurance
application forms); Ahnert v. Wildman, 376 N.E.2d 1182, 1186 (Ind. Ct. App.
1978) (suggesting in dictum that the same duty exists); Picker v. Castro, 776
N.Y.S.2d 433 (Sup. Ct. 2003) (finding the same duty); N.Y. City Health &
Hosp. Corp. Goldwater Mem’l Hosp. v. Gorman, 448 N.Y.S.2d 623, 624 (Sup. Ct.
1982) (holding that a public hospital has an obligation to assist patient in
applying for Medicaid); cf. Chew v. Meyer, 527 A.2d 828, 832 (Md. Ct. Spec.
App. 1987) (recognizing a physician’s duty to help a patient obtain a paid
absence from work for health reasons). But these isolated decisions depend on
narrow, not fiduciary, reasoning. For instance, in Picker, a psychologist
refused to help as a protest against the insurance industry, even though the
patient offered to pay the doctor’s hourly rate for completing the paperwork.
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