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Lean on Me: A Physician’s Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient

44 Pages Posted: 22 Aug 2009  

Thomas L. Hafemeister

Independent

Selina Spinos

affiliation not provided to SSRN

Date Written: August 15, 2009

Abstract

This analysis has two purposes. The first is to establish that physicians owe their patients a fiduciary duty. Courts and commentators have widely acknowledged that this duty exists because of the nature of the special relationship between a physician and a patient. Application of this duty has been sparse, however, in part because its jurisprudential foundation has received virtually no attention. This Article explores that foundation and establishes the strong basis for recognizing and applying this doctrine.

The second purpose is to apply this doctrine to an issue that has generated considerable attention, both within and outside the medical profession: the concern that some physicians are failing to disclose medical errors and other emergent medical risks (collectively referred to as EMRs) to patients who are unaware of these developments. There is widespread recognition that patients want and need to trust their doctors and the hospitals to which they turn for help in times of sickness and injury. This Article asserts that physicians’ fiduciary duty to patients encompasses a duty to disclose EMRs to patients who are unaware of them. Although most physicians and professional organizations agree that such disclosures should be readily provided, these disclosures are not always forthcoming. Recognizing a fiduciary-based duty to disclose will encourage physicians to share crucial information with patients, which in turn will enable patients to avoid or mitigate potential harm. By routinely disclosing this information, physicians will deepen the trust of their patients in them and thereby facilitate the partnership between patients and physicians that should be the hallmark of health care.

Keywords: Health Care Policy & Litigation, Emergent Medical Events & Medical Error, Physician-Patient Relationships & Fiduciary Duties, Disclosures to Patients, Informed Consent, Medical Malpractice, Torts

JEL Classification: I00, I1, I10, I12, I18, I19, K32

Suggested Citation

Hafemeister, Thomas L. and Spinos, Selina, Lean on Me: A Physician’s Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient (August 15, 2009). Washington University Law Review, Vol. 86, No. 5, 2009. Available at SSRN: https://ssrn.com/abstract=1443469

Selina Spinos

affiliation not provided to SSRN ( email )

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