Beware Those Bearing Gifts: Physicians' Fiduciary Duty to Avoid Pharmaceutical Marketing
Thomas L. Hafemeister
Sarah Payne Bryan
Montgomery, McCracken, Walker & Rhoads, LLP
August 15, 2009
University of Kansas Law Review, Vol. 57, No. 3
Pharmaceutical marketing has pervaded the practice of medicine. In some forms it can compromise the quality of patient care. Despite the fact that professional organizations such as the American Medical Association (AMA) and many states have taken steps to admonish or prohibit physicians from accepting gifts or compensation from agents of pharmaceutical companies seeking to market their products, the practice has not stopped.
This article proposes using the physicians’ fiduciary duty to their patients as a means to further encourage physicians to refrain from inappropriately accepting these gifts and to ensure that the well-being of their patients remains their focus. It will also reassure patients that they can trust and rely on the undivided loyalty of their physicians.
Two carefully circumscribed exceptions to this duty are noted: one for clinical research sponsored by pharmaceutical companies and another for free samples obtained from a third-party distribution system. These exceptions will help preserve many of the positive benefits of marketing. By recognizing this fiduciary duty, physicians will be encouraged to abstain from inappropriate exposures to pharmaceutical marketing that may compromise their medical judgment and encourage a return of the practice of medicine to its patient-centered focus.
Number of Pages in PDF File: 47
Keywords: health care policy & litigation, physician-patient relationships & fiduciary duties, pharmaceutical marketing, free samples, clinical trials, torts
JEL Classification: I00, I1, I10, I12, I18, I19, K32
Date posted: August 22, 2009