Fiduciary Disclosure of Medical Mistakes: The Duty to Promptly Notify Patients of Adverse Health Care Events

Journal of Law and Medicine, Vol. 12, pp. 478-482, 2005

5 Pages Posted: 20 May 2009

See all articles by Thomas Alured Faunce

Thomas Alured Faunce

Australian National University

T. A. Bolsin

affiliation not provided to SSRN

Date Written: May 20, 2005

Abstract

Fiduciary obligations are imposed by the common law to ensure that a person occupying a societal role with a high potential for the manipulation of vulnerable persons exercises utmost good faith. Australian law has recognised that the doctor-patient relationship, while not wholly fiduciary, has fiduciary aspects. Amongst such duties are those prohibiting sexual or financial abuse of patients or disclosure without express authority of confidential information. One important consequence of attaching such fiduciary duties to the doctor-patient relationship is that the onus of proof falls not upon the vulnerable party (the patient), but upon the doctor (to disprove the allegation). Another is that consent cannot be pleaded as an absolute defence. In this article the authors advocate that the law should now accept that the fiduciary obligations of the doctor-patient relationship extend to creating a legal duty that any adverse health care event be promptly reported to the patient involved. The reasons for creating such a presumption, as well as its elements and exceptions, are explained.

Keywords: Fiduciary law, adverse incidents, doctor-patient relationship, hospital safety

Suggested Citation

Faunce, Thomas Alured and Bolsin, T. A., Fiduciary Disclosure of Medical Mistakes: The Duty to Promptly Notify Patients of Adverse Health Care Events (May 20, 2005). Journal of Law and Medicine, Vol. 12, pp. 478-482, 2005. Available at SSRN: https://ssrn.com/abstract=1407526

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

T. A. Bolsin

affiliation not provided to SSRN

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