Vanderbilt Law Review

First Page



In the medical liability wars, physicians like to think that they are the ones in the trenches. Yet the true soldiers, of course, are the patients. As patients seek to avoid the barrage of malpractice reforms and the spoliation of managed care, one of their key refuges-the fiduciary duty of health care professionals-is being assailed from a number of directions. This Article describes these attacks and suggests how best to thwart them.

Imagine that you are seriously ill and go to a doctor. If you are like most patients these days, you are enrolled in some form of managed care. One consequence of this is that your doctor is a relative stranger. Another is that the doctor has a financial interest in providing you with the minimum possible amount of care, for example, foregoing beneficial diagnostic tests and ordering less expensive treatments. This can seriously harm you. How would you feel if the doctor made a mistake that harmed you, not because he was careless or forgetful--what might be called an inadvertent or "honest mistake"-but because the doctor made a "dishonest" mistake-that is, sacrificed your interests in order to benefit himself? In other words, how important is it to you that your doctor be not only competent, but committed to placing your interests ahead of his own?