The Fiduciary Obligation of Physicians to 'Just Say No' if an 'Informed' Patient Demands Services that Are Not Medically Indicated

52 Pages Posted: 22 Aug 2009

Date Written: August 15, 2009

Abstract

In the late 1990s, the FDA opened the floodgates for pharmaceutical companies to advertise their products directly to patient-consumers. Due to this direct-to-consumer advertising and the advent of the Internet, which together provide ready access to large quantities of generic and sometimes misleading, misunderstood, or misapplied medical information, patients increasingly demand specific drugs, treatment, or other medical services from their physicians. If the physician fails to provide access to the requested medication or procedure, patients may “shop around” for a physician who will accede to their demands.

This Article explores how the “information” received by patients through the Internet and advertisements has impacted the physician-patient relationship. One impact is that patients have started to self-diagnose and search for doctors who agree with their treatment plans. As a result of these treatment demands, physicians are under growing pressure to provide the requested prescriptions or other medical services to maintain their patient base, which may be critical to a physician’s financial survival.

Physicians, however, have a fiduciary obligation to their patients, which includes the duty to resist patient demands for treatment that are not medically indicated. Physicians must exercise independent medical judgment prior to authorizing access to medical services, regardless of the potential adverse financial ramifications that may result. By imposing a legal duty on physicians to resist providing treatment that is not medically indicated, patients, physicians, and society will all benefit.

Keywords: health care policy & litigation, medical information via advertising & the Internet, physician-patient relationships & fiduciary duties, informed consent, medical malpractice

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

Suggested Citation

Hafemeister, Thomas L. and Gulbrandsen, Richard M., The Fiduciary Obligation of Physicians to 'Just Say No' if an 'Informed' Patient Demands Services that Are Not Medically Indicated (August 15, 2009). Seton Hall Law Review, Vol. 39, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1458544

Richard M. Gulbrandsen

affiliation not provided to SSRN ( email )

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