Autonomy and Privacy: Protecting Patients from their Physicians
98 Pages Posted: 28 May 2009 Last revised: 14 Mar 2014
Date Written: 1993
Whom do physicians serve first: themselves, their patients, insurers, or society-at-large? This article constitutes the first scholarly exploration of the legal system's sometimes conflicting attempts to resolve this issue in the context of provider-associated risk. These risks require a novel, and to some extent counterintuitive, judicial and legislative response. Our health care system is undeniably complex: full of hope and despair, sickness and health, greed and altruism, service and sales. Our view of the doctor-patient relationship is similarly fractured. As patients, we place hope and trust in our physicians. As health care consumers, we are suspicious of where we fall on our physician's list of priorities. There is a new perception that patients can be injured by physician self-interest. A physician's personal characteristics or economic relationships with others might ultimately cause patient injury; physicians seeking to provide care for patients therefore inevitably must confront conflicting interests. Part II of this article describes two major types of physician-associated risks: those arising out of the provider's economic arrangements with others, and those arising out of some other personal characteristic of the physician. A review of recent research indicates that physicians can present identifiable risks to their patients that are distinguishable from the risks that patients ordinarily face from illnesses or treatments. The remainder of the article considers the appropriate type and scope of governmental intervention to deal with provider-associated risk. There are two possible types of governmental market interventions designed to combat these problems: prohibitions and disclosure obligations. Part III of the article considers the use of prospective or retrospective prohibition, accomplished either through regulation or malpractice litigation. This article concludes that these historically-favored mechanisms for dealing with provider risk may provide largely illusory protection. Disclosure obligations are the major alternative to transaction bars, and are considered in Part IV. In Part V, this article analyzes the application of prohibitions and disclosure obligations to provider-associated risks. It concludes that risks arising from providers' personal characteristics should be regulated through improved prohibitory regulation rather than through the imposition of additional disclosure obligations.
Keywords: Conflicts of interest, Informed consent, Medical malpractice, Health services administration, Physicians
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