The Fiduciary Nature of the Physician–Patient Relationship

The physician–patient relationship, like the attorney–client relationship, is a quintessential example of what is known generally as a fiduciary relationship. Such relationships are characterized by expectations of trust and confidence that are reposed by a vulnerable party in the other party who holds him or herself out as possessing specialized knowledge, expertise, and experience. Society, through both laws and codes of professional ethics, imposes upon the party in whom the vulnerable party entrusts this trust and confidence an obligation to act solely in the interests of the vulnerable party, and to use their expertise only so as to promote the other party’s interests and wellbeing. Therefore, despite health policy discussions about the appropriateness of individual physicians taking into account the costs of medical procedures and treatments to a health plan or society, such considerations cannot, as a matter of prevailing law, properly influence a physician’s decision whether or not to offer or recommend such procedures and treatments to patients when necessary or appropriate to diagnose or treat medical conditions. Moreover, any form of artifice, deception, or lack of diligence in the pursuit of the other’s interests, or incompetence, may be the basis for disciplinary action by a professional licensing authority and/or malpractice judgment in the courts.

The exponential growth of managed care organizations (MCOs) in recent decades has created the perception, if not in some instances the reality, of potential conflicts of interest between a physician’s professional duty to their patient and their contractual obligation to such MCOs. The role of the primary care physician (PCP) as “gatekeeper” to specialty care within a health plan, the capitation system by which PCPs are compensated by MCOs, and the financial benefits to the PCP that may accrue from the limitation of patient referrals for specialty care create at least the appearance of threats to the most essential feature of the physician’s fiduciary duty to the patient, which is to act only so as to further his or her interests, and not those of some larger group of health plan participants, or the physician. The courts have been relatively consistent in their refusal to allow changing modes of funding the provision of health care services to materially alter an individual physician’s responsibility toward an individual patient. Indeed, one court noted that “the physician who complies without protest with the limitations imposed by a third party payor, when his medical judgment dictates otherwise, cannot avoid his ultimate responsibility for his patient’s care.”²

One of the ways in which medical jurisprudence has sought to reduce the imbalance of power between physician and patient is the formulation and imposition of the duty to obtain the patient’s informed consent to any medical intervention, and to respect the informed refusal of a patient to undergo a recommended medical intervention. The failure of a physician to advise a patient about the nature of the proposed intervention, its risks, benefits, and alternatives, and the prognosis with or without treatment, will constitute a breach of the physician’s duty to a patient and a departure from the prevailing standard of acceptable care (see Chapter 14 for a more detailed discussion and analysis of this topic).

When discussing options for diagnosis or treatment of a patient’s condition, physicians should strive to be scrupulous in clearly distinguishing between that which they merely offer, because it is in the realm of possibility and hence perhaps required by the doctrine of informed consent, and that which the physician genuinely believes to be most appropriate and beneficial to the patient, and therefore actually recommends. Keeping this distinction in mind is important because patients generally assume that a physician would not even mention an intervention or course of treatment unless he or she believed the patient should undergo it, even though that might not in fact be the case. This distinction is particularly critical when a physician discusses treatment options of last resort, life-sustaining interventions, or participation in clinical trials for gravely ill or terminal patients (see Chapter 9).

Contractual Issues in the Physician–Patient Relationship

Typically, the nature of the physician–patient relationship, particularly in the primary care setting, is not specifically delineated or circumscribed by written contractual provisions. While the court that considered the case described at the beginning of this chapter did so as the primary basis for concluding that a physician–patient relationship existed between Tavera and Hand, despite the fact that they had never met, historically and in most instances written agreements are not the deciding factor. In the absence of any written contract, generally acceptable expectations will control the extent of the physician’s responsibility to the patient and the determination of when there has been a failure on the part of the physician to fulfill those responsibilities. However, in the event there is a written contract specifically setting forth the physician’s responsibilities to the patient, as well as, perhaps, the patient’s responsibilities within that relationship, then the contract will be controlling so long as the patient knowingly and voluntarily entered into it. Contracts in which one party, in this circumstance the patient, was not at liberty to negotiate the terms of the contract, or otherwise unable to seek comparable care elsewhere, are considered by the law to be “contracts of adhesion” and are highly disfavored. Consequently, any ambiguities in the contractual language will be construed in favor of the patient.

For obvious reasons, physicians rarely execute written contracts with patients that purport to guarantee or otherwise ensure certain results from medical treatment—what are characterized by the law as “express warranties.” A circumstance approximating a written assurance of outcome might be drawings or sketches provided to a patient by a plastic surgeon illustrating the anticipated results of cosmetic surgery. Unless there were specific written contractual provisions clearly indicating that the provision of such visual representations did not constitute a warranty of the results, patients might reasonably rely on such sketches and a material departure from the results could give rise to a breach of contract claim by the patient.

It should not be surprising that a physician might make oral representations that minimize the risks or exaggerate the likelihood of benefits confronting the patient in undergoing a recommended medical intervention. When a risk with major adverse consequences arises, or the anticipated benefit of a major intervention fails to be achieved, the patient in such circumstances is likely to believe that there has been a breach of the physician–patient relationship. If there is a significant disparity between the oral representations made by the physician and any written disclaimers in the consent form, some courts might be inclined to permit the patient plaintiff to present evidence to the jury that the physician’s representations were so materially different from the consent form as to constitute a material misrepresentation of fact that would allow the case to go to the jury.

There are a surprising number of cases in which physicians have made verbal statements that courts have ultimately determined to be contractual warranties of results. The critical distinction that courts seek to make is between statements that fall within the category of “therapeutic reassurance,” and statements that cross the line into a guarantee of certain results or a warranty of “cure.” Telling a patient “We will take good care of you” is clearly no more than reassurance, even if the outcome of treatment is not what either the patient or physician hoped for, whereas telling a patient that if she undergoes a coronary artery bypass grafting procedure she “will never have chest pain again” is arguably a warranty of a certain result. There will, inevitably, be many cases that fall within a gray zone somewhere between a statement that is obviously no more than a well-intentioned reassurance of a worried patient, and a clear promise that a certain outcome will not simply be pursued but actually achieved. Avoiding these gray areas is part of the art (as opposed to the science) of medicine that involves effective communication of risk and benefit by the physician to the patient.

One area that has proven to be “fertile” for breach of warranty claims against physicians is sterilization procedures. A statement that the procedure (bilateral tubal ligation) was “permanent and irreversible” might reasonably be interpreted by a patient as a warranty that, if properly performed, the patient will be assured of never becoming pregnant again.³ Since there is a small but recognized statistical possibility that even a properly performed tubal ligation or vasectomy may not render the patient permanently unable to procreate, physicians must be very careful how they frame their representations to patients, and carefully document in the medical record what they actually do say. From a risk management perspective, physicians would be wise to consider providing the patient with a written explanation about the procedure that clearly disclaims any guarantee or results, and then document in the record that the patient acknowledged having received, reviewed, and understood its contents.

Another area of practice in which breach of contract suits have been successful involves changes in the nature of the procedure or the person who performs it. In some circumstances, patients consent to performance of a particular procedure or performance of a procedure in a particular way. If the physician fails to obtain consent to perform the procedure in another way or to perform an alternative procedure if circumstances at the time justify doing so and the patient is not “available” to agree to the change, e.g., is under general anesthesia or heavily sedated, a breach of contract action might be allowed. Also, courts have consistently held that “ghost surgery,” in which unbeknownst to the patient a physician other than the one known to the patient performs the procedure, can be the basis for a breach of contract claim. Therefore, physicians must be careful to allow themselves as much flexibility as they believe may be reasonably necessary in order to appropriately address unanticipated circumstances through their prior consent discussions with patients.

There are several reasons why a patient plaintiff will be inclined to pursue a breach of warranty claim in addition to, or perhaps even instead of, a claim of negligence against a physician. One is that in a number of jurisdictions no expert testimony is necessary in order for the plaintiff’s case to go to the jury.⁴ That is because the crux of the complaint is not that the physician departed from the prevailing standard of care, which can only be established through expert testimony, but rather that he or she failed to produce the result that they promised. Thus the critical issue in the latter claim is not the applicable standard of care, but rather the precise nature of the promise and whether or not what was promised was in fact provided. Another reason why patients may be inclined to invoke a breach of warranty claim if the facts support it is that in some jurisdictions the statute of limitations is longer for contract actions than for tort actions. If the statute of limitations has run on a malpractice claim, a breach of contract claim may offer the only possibility of recovery to a prospective plaintiff.

One form of contractual provision in the health care setting that has been consistently repudiated by the courts is the “exculpatory clause.” Such clauses are an effort by health care institutions or professionals to force patients to waive their right to pursue professional liability claims arising out of the care about to be provided. Even in instances in which the quid pro quo has been the provision of free care, courts have ruled such clauses to be invalid because they are considered to be against the public interest.⁵ Courts have shown themselves to be amenable to partial limitations on the right of patients to sue under special circumstances. A typical example would be a form signed by the patient releasing the physician and health care institution for liability for the adverse consequences stemming from the patient’s refusal of a particular intervention, such as a blood transfusion.⁶

A relatively new form of contract that has received increasing attention, particularly in the pain medicine community, is known as an “opioid contract.” With the increased emphasis upon the importance of effective assessment and management of pain to quality patient care, and the growing acceptance of the need that some patients with moderate to severe chronic pain (of both malignant and nonmalignant origins) have for opioid analgesics, the opioid contract has been touted as a means of carefully circumscribing the parameters within which opioid therapy will be provided.⁷ Common provisions of such contracts include requirements that the patient do the following:

Secure opioids only from one physician.

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