This Article advocates disclosure as a compromise between wholeheartedly embracing financial incentives and flatly prohibiting them, and suggests using fiduciary law to compel such disclosure. This Article also argues that courts should recognize a cause of action for breach of fiduciary duty when a physician fails to disclose managed care financial incentives to her patients. Part I gives a brief overview of fiduciary law and fiduciary duties. Part II examines the fiduciary nature of the physician-patient relationship and looks at court cases that have characterized the physician-patient relationship as a fiduciary relationship. Part Ill discusses the only two published opinions that have addressed the issue of whether a patient can bring a breach of fiduciary claim against a physician. Building on these two cases, Part IV recommends that courts recognize a cause of action for breach of fiduciary duty for failure to disclose managed care financial incentives and discusses the remedies for breach. Finally, Part V examines the benefits and limits of disclosure as a way of dealing with financial incentives.
Patient Advocates or Patient Adversaries? Using Fiduciary Law to Compel Disclosure of Managed Care Financial Incentives,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol35/iss4/2