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Hafemeister & Spinos on a Fiduciary Duty of Physicians to Disclose Emergent Medical Risks

By Lawrence Solum

Thomas L. Hafemeister and Selina Spinos (University of Virginia School of Law) have posted Lean on Me: A Physician?s Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient (Washington University Law Review, Vol. 86, No. 5, 2009) on SSRN. Here is the 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.

Full post as published by Legal Theory Blog on August 25, 2009 (boomark / email).