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Vanderbilt Law Review

First Page

139

Abstract

In one case, a physician refers a patient to a certain hospital in return for an undisclosed referral fee from the hospital. In another, a physician decides not to refer a patient to a specialist for further examination. The physician, however, does not disclose to the patient that part of the cost of sending the patient to the specialist would come out of the physician's potential earnings. In the previous examples, has the physician breached her fiduciary duty to the patient by not disclosing her own financial interest in the patient's treatment? If so, the physician could be guilty of mail fraud under the federal "honest services" mail fraud statutes and subject to severe criminal penalties.

This Note explores the connection between the "honest services" mail fraud statute and the traditional physician-patient fiduciary relationship. At present, the connection is closer than one might expect and promises to become even closer in the near future. The federal judiciary and, most recently, Congress, have steadily expanded the mail fraud statute, which was originally enacted to protect the mail service, to criminalize an undisclosed breach of public or private fiduciary duty, or rather, to protect the beneficiary's intangible right to "honest services." This expansion of the mail fraud statute is partly a result of the statute's broad and ambiguous language, which allows the statute, in the discretionary hands of a federal prosecutor, to criminalize breaches of fiduciary duties not previously covered under other criminal statutes, such as the fiduciary duty a physician owes the patient.

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