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Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System

Published online by Cambridge University Press:  24 February 2021

Marc A. Rodwin
Marc A. Rodwin*
Affiliation:
School of Public and Environmental Affairs, Indiana University. Brown University; Oxford University; University of Virginia; Brandeis University
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Extract

Owen Barfield, the British solicitor and literary scholar, reminds us that many legal concepts have their origin as metaphors and legal fictions. We often fail to see the nature of legal metaphors, Barfield argues, because over time they ossify and we read them literally rather than figuratively. Look closely at changes in law over time, Barfield advises us, to see how effectively metaphor works in law and language. Many legal categories and procedures we now use had their origin in using a metaphor that revealed a new way of looking at a problem or that helped solve a legal problem. Legal metaphors also help us to identify critical limits and strains in adapting to new facts and circumstances.

George Annas has pointed out that our choice of metaphors for medicine can reframe our debates about health policy reform. And Analee and Thomas Beisecker remind us that patient-physician relations have been viewed through many metaphors. These include parent-child relations (paternalism); seller-purchaser transactions (consumerism); teacher-student learning (education); relations among partners or friends (partnership or friendship); or rational parties entering into negotiations or contracts (negotiation or rational contract).

Type
Articles
Information
American Journal of Law & Medicine , Volume 21 , Issue 2-3: Conflicts of Interest in Health Care , 1995 , pp. 241 - 258
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1995

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Footnotes

†

Research on this article was funded in part by an Investigator Award of the Robert Wood Johnson Foundation. I owe thanks to Maureen Hickman and Heidi Tsang for research assistance and to Bobby Brookings and Heather Almeter for secretarial assistance.

References

1 Barfield, Owen, Poetic Diction and Legal Fiction, in THE IMPORTANCE OF LANGUAGE 51, 58-59 (Max Black ed., 1962).Google Scholar

2 Id. at 58-59.

3 Id. at 64-66.

4 The illustrations Barfield uses come mostly from forms of action in early English law, the ideas of corporate action and trustee ownership. Id. at 59-65.

5 For a thoughtful discussion of metaphors in medicine, see Annas, George J., Refraiming the Debate on Health Care Reform by Replacing Our Metaphors, 332 NEW ENG. J. MED. 744 (1995).Google Scholar

6 Beisecker, Analee E. & Beisecker, Thomas D., Using Metaphors to Characterize Doctor-Patient Relationships: Paternalism Versus Consumerism, 5 HEALTH COMM. 41 (1993).Google Scholar

7 Id. For examples of various metaphors for viewing doctors and patients, see (educator) Caplan, A.L., Informed Consent and Provider-Patient Relationships in Rehabilitation Medicine, 69 ARCHIVES PHYSICAL MED. & REHABILITATION 312 (1988)Google Scholar (engineer, priestly healer); Maxwell J. Mehlman, Fiduciary Contracting: Limitations on Bargaining Between Patients and Health Care Providers, 51 U. PITT. L. REV. 365 (1990) (rational contract); Richard A. Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87; Clark C. Havighurst, Private Reform of Tort-Law Dogma: Market Opportunities and Legal Obstacles, LAW & CONTEMP. PROBS., Spring 1986, at 143; Robert M. Veatch, Models fur Ethical Medicine in a Revolutionary Age, HASTINGS CENTER REP., June 1972, at 105; Childress, James F. & Siegler, Mark, Metaphors and Models of Doctor-Patient Relationships: Their Implications for Autonomy, 5 THEORETICAL MED. 17 (1984)Google Scholar (partnership or friendship, negotiation); Barber, Bernard, Compassion in Medicine: Toward New Definitions and New Institutions, 295 NEW ENG. J. MED. 939 (1976)Google Scholar (paternalism); TOM L. BEAUCHAMP & LAURENCE B. MCCULLOUGH, MEDICAL ETHICS: THE MORAL RESPONSIBILITIES OF PHYSICIANS (1984); WADE L. ROBISON & MICHAEL S. PRITCHARD, MEDICAL RESPONSIBILITY: PATERNALISM, INFORMED CONSENT, AND EUTHANASIA 1-42 (1979) (paternalism); Henderson, L.J., Physician and Patient as a Social System, 212 NEW ENG. J. MED. 819 (1935)Google Scholar; TALCOTT PARSONS, THE SOCIAL SYSTEM (1951); Beisecker, Analee E., Aging and the Desire for Information and Input in Medical Decisions: Patient Consumerism in Medical Encounters, 28 GERONTOLOGIST 330 (1988)Google Scholar; Reeder, Leo G., The Patient- Client as a Consumer: Some Observations on the Changing Professional-Client Relationship, 13 J. HEALTH & Soc. BEHAV. 406 (1972)Google Scholar (consumerism); BOSTON WOMEN's HEALTH BOOK COLLECTIVE, THE NEW OUR BODIES, OURSELVES: A BOOK BY AND FOR WOMEN (1984); FRANCIS V. CHISARI & ROBERT M. NAKAMURA, THE CONSUMER's GUIDE TO HEALTH CARE (1976); ARTHUR LEVIN, TALK BACK TO YOUR DOCTOR: HOW TO DEMAND (AND RECOGNIZE) HIGH-QUALITY HEALTH CARE (1975); KEITH W. SEHNERT & HOWARD EISENBERG, HOW TO BE YOUR OWN DOCTOR, SOMETIMES (1975); DONALD M. VICKERY & JAMES F. FRIES, TAKE CARE OF YOURSELF: A CONSUMER's GUIDE TO MEDICAL CARE (1976); Linda Demkovich, Fight for Your Rights, MOD. MATURITY, Apr.-May 1987, at 32; HAROLD J. CORNACCHIA & STEPHEN BARRETT, CONSUMER HEALTH: A GUIDE TO INTELLIGENT DECISIONS (2d ed. 1980); PATRICIA A. HAMILTON, HEALTH CARE CONSUMERISM (1982) (consumerism); ROBERT E. KIME, HEALTH: A CONSUMER's DILEMMA (1970) (consumerism).

For a thoughtful discussion of metaphors in medicine, see SUSAN SONTAG, AIDS AND ITS METAPHORS (1989); SUSAN SONTAG, ILLNESS AS METAPHOR (1978); Annas, supra note 5, at 744-47.

8 See generally MARC A. RODWIN, MEDICINE, MONEY, AND MORALS: PHYSICIANS’ CONFLICTS OF INTEREST (1993). For discussions of the fiduciary metaphor from a different perspective, see Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 1988 DUKE L.J. 879; Eileen A. Scallen, Promises Broken vs. Promises Betrayed: Metaphor, Analogy, and the New Fiduciary Principle, 1993 U. ILL. L. REV. 897.

9 Luke 16:1-8 (King James); Austin W. Scott, The Fiduciary Principle, 37 CAL. L. REV. 539, 539-40 (1949).

10 Scott, supra note 9, at 540.

11 “No servant can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.” Luke 16:13 (King James).

12 See generally I AUSTIN W. SCOTT & WILLIAM F. FRATCHER, THE LAW OF TRUSTS 42-48 (4th ed. 1987); WARREN A. SEAVEY, HANDBOOK OF THE LAW OF AGENCY (1964).

13 I SCOTT & FRATCHER, supra note 12; SEAVEY, supra note 12.

14 Scott, supra note 9, at 541; James E. Holmes, Note, The Federal Conflicts of Interests Statutes and the Fiduciary Principle, 14 VAND. L. REV. 1485, 1499 (1961). See ROBERT C. CLARK, CORPORATE LAW 141-57 (1986); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 145 (1986). See generally I TAMAR FRANKEL, THE REGULATION OF MONEY MANAGERS: THE INVESTMENT COMPANY ACT AND THE INVESTMENT ADVISERS ACT 4-6 (1978); BAYLESS MANNING, FEDERAL CONFLICT OF INTEREST LAW (1964); Kathleen Clark, Do We Have Enough Ethics in Government Yet? An Answer from Fiduciary Theory, 1996U. ILL. L. REV. (forthcoming 1996).

15 Scott, supra note 9, at 540.

16 See P.D. FINN, FIDUCIARY OBLIGATIONS (1977); J.C. SHEPHERD, THE LAW OF FIDUCIARIES (1981); Scott, supra note 9, at 541 (the greater the fiduciary's authority, the greater the duty); Weinrib, Ernest J., The Fiduciary Obligation, 25 U. TORONTO L.J. 1, 5-6 (1975)Google Scholar. See generally, L.S. Sealy, Some Principles of Fiduciary Obligations, 1963 CAMBRIDGE L.J. 119, 119-22. Cf. Tamar Frankel, Fiduciary Law, 71 CAL. L. REV. 795 (1983) (adapting the fiduciary duty to the structure and nature of the fiduciary relationship).

17 RODWIN, supra note 8, at 179-211. See generally SHEPHERD, supra note 16; Frankel, supra note 16; Scott, supra note 9; Sealy, supra note 16; Weinrib, supra note 16. For other perspectives, see also Clark, supra note 14; DeMott, supra note 8; Robert Flannigan, The Fiduciary Obligation, 9 OXFORD J. LEGAL STUD. 285 (1989); Scallen, supra note 8; J.C. Shepherd, Towards a Unified Concept of Fiduciary Relationships, 97 LAW Q. REV. 51 (1981).

18 Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

19 See generally RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 428 (2d ed. 1987) (distinguishing two types of conflict of interest).

20 However, parties can structure their relations so that they do not engage in activities that are currently subject to fiduciary law.

21 Over time, courts have developed legal principles in several distinct areas of law and applied these principles to new situations that appeared analogous. In addition, common law fiduciary principles have been the basis for new or more extensive obligations imposed by legislation. For example, Congress enacted the Investment Company Act and the Investment Advisers Act to remedy abuses in these fields. See 1 FRANKEL, supra note 14, at 21-34.

22 See RODWIN, supra note 8, at 179-211.

23 See 1 FRANKEL, supra note 14, at 21-34.

24 Many relationships have attributes of those recognized as fiduciary but are not themselves considered fiduciary relationships. For example, automobile mechanics give advice and have special expertise. Customers depend on their judgment and honesty, but auto mechanics are not considered fiduciaries. There are three ways to account for why activities such as these are not covered by fiduciary principles. First and foremost, these activities are different in degree, rather than in kind. Their importance and the degree of the purchaser's vulnerability is generally less than in fiduciary relationships. The market generally does an adequate job of holding the providers accountable. Second, there has been a greater willingness of courts and legislatures to impose fiduciary standards on the classic professions because of tradition, their independence, and self-regulation. Third, the decision to hold any class or individual to fiduciary standards is a social decision. If society, through the action of courts, legislatures, and other means, wishes to extend fiduciary obligations to new groups, it may.

Even activities that are not regulated as “fiduciary” may be held to some similar obligations. Federal and many state consumer protection laws require sellers to make full disclosure of material facts to prospective purchasers and impose penalties for failure to do so and for making misrepresentations. See, e.g., Regulation of Business Practices and Consumer Protection Act, MASS. GEN. L. ch. 93A, §§ 1 et seq. (1992); Reich, Robert B., Toward a New Consumer Protection, 128 U. PA. L. REV. 1, 9-19 (1979)Google Scholar (government as a similar purchasing agent). See generally Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 775-78 (Mass. 1975) (discussing MASS. GEN. L. ch. 93A); Bailey, Patricia P. & Pertschuk, Michael, The Law of Deception: The Past as Prologue, 33 AM. U. L. REV. 849, 849-97 (1984)Google Scholar. These are similar to many disclosure obligations for brokers and others involved in sale of securities regulated by the Securities Exchange Act of 1934, 15 U.S.C. § 78a (1994). See, e.g., Federal Trade Commission Act, 15 U.S.C. §§ 41 et seq. (1988).

25 In recent years, many of the common law rules regarding fiduciaries have been codified in the United States Code. See GEORGE G. BOGERT & GEORGE T. BOGERT, THE LAW OF TRUSTS, 15-17 (5th ed. 1983) (notes accompanying text).

26 PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 143-46 (1987).

27 Moore v. Regents of the Univ. of Cal., 793 P.2d 479,483 (Cal. 1990), cert. denied, 499 U.S. 936 (1991); Mehlman, supra note 7.

28 HIPPOCRATES (W.H.S. Jones et al. trans., 1923).

29 Id.

30 American Medical Ass'n, First Code of Medical Ethics, in ETHICS IN MEDICINE: HISTORICAL PERSPECTIVES AND CONTEMPORARY CONCERNS 26 (Stanley J. Reiser et al. eds., 1977) (reprinting PROCEEDINGS OF THE NATIONAL MEDICAL CONVENTION 1846-1847, at 83-106 (1847)); World Medical Ass'n, Declaration of Geneva, in ETHICS IN MEDICINE: HISTORICAL PERSPECTIVES AND CONTEMPORARY CONCERNS 37 (Stanley J. Reiser et al. eds., 1977) (reprinting Declaration of Geneva, I WORLDMED. ASS'N BULL. 109-11 (1949)); AMERICAN MEDICAL ASS'N, PRINCIPLES OF MEDICAL ETHICS, §§ 5-7 (1957) [hereinafter AMA, MEDICAL ETHICS].

31 AMA, MEDICAL ETHICS, supra note 30, § 1.

32 AMERICAN MEDICAL ASS'N, REPORT OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, REPORT A (I- 86): CONFLICTS OF INTEREST 11 (1986).

33 Id. at 2.

34 Id.

35 American Medical Ass'n, Council on Ethical and Judicial Affairs, Ethical Issues in Managed Care, 273 JAMA 330 (1995).

36 American College of Physicians, Ad Hoc Comm. on Medical Ethics, American College of Physicians Ethics Manual, Part 1, 101 ANNALS OF INTERNAL MED. 129, 134 (1984).

37 Id.

38 AMERICAN COLLEGE OF SURGEONS, STATEMENTS ON PRINCIPLES 3 (1994) [hereinafter SURGEONS, STATEMENTS ON PRINCIPLES].

39 Marcia Angell, Medicine: The Endangered Patient-Centered Ethic, HASTINGS CENTER REP., Feb. 1987, at S12, S12.

40 Levinsky, Norman G., The Doctor's Master, 311 NEW ENG. J. MED. 1573, 1575(1984)Google Scholar.

41 Relman, Arnold S., Dealing with Conflicts of Interest, 313 NEW ENG. J. MED. 749, 750 (1985)Google Scholar.

42 Arnold S. Relman, The Future of Medical Practice, HEALTH AFF., Summer 1983, at 5, 18.

43 Relman, Arnold S., The New Medical-Industrial Complex, 303 NEW ENG. J. MED. 963, 967 (1980)Google Scholar.

44 See generally RODWIN, supra note 8, at 207-11.

45 Id.

46 Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972); Miller v. Kennedy, 522 P.2d 852, 860 (Wash. Ct. App. 1974), aff'd, 530 P.2d 334 (1975); Cobbs v. Grant, 502 P.2d 1, 7-8 (Cal. 1972); Lockett v. Goodill, 430 P.2d 589, 591 (Wash. 1967).

47 Canterbury, 464 F.2d at 780; Hammonds v. Aetna Casualty & Sur. Co., 243 F. Supp. 793, 801-02 (D. Ohio 1965) (confidentiality); Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 483 (Cal. 1990), Cert. denied, 499 U.S. 936 (1991) (disclosure of financial interest in research); Miller, 522 P.2d at 860; Cobbs, 502 P.2d at 7-8; Lackett, 430 P.2d at 591.

48 The exception is the Moore case, which addressed financial conflicts of interest in research. Moore, 793 P.2d 479.

49 Frances H. Miller, Secondary Income from Recommended Treatment: Should Fiduciary Principles Constrain Physician Behavior?, in THE NEW HEALTH CARE FOR PROFIT: DOCTORS AND HOSPITALS IN A COMPETITIVE ENVIRONMENT 153, 153-69 (Bradford H. Gray ed., 1983).

50 Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1864 (1978) (codified in relevant parts at 18 U.S.C. § 207, as amended by Pub. L. No. 96-28, §§ 1-2, 93 Stat. 76 (1979)); 28 U.S.C. § 591 et seq. (1988).

51 See, e.g., ABA COMM'N ON EVALUATION OF PROFESSIONAL STANDARDS, MODEL RULES OF PROFESSIONAL CONDUCT (1983); ABA SPECIAL COMM. ON EVALUATION OF ETHICAL STANDARDS, CODE OF PROFESSIONAL RESPONSIBILITY (1969).

52 ABA COMM. ON CORPORATE LAWS, MODEL BUSINESS CORPORATION AcT (2ded. 1971).

53 See Securities Act of 1933, 15 U.S.C. § 77a (1994); Securities Exchange Act of 1934, 15 U.S.C. § 78a (1994); Investment Company Act of 1940, 15 U.S.C. §§ 80a-1 to 80a-52 (1994); Investment Advisers Act of 1940, 15 U.S.C. §§ 80b-l to 80b-21 (1994); Louis Loss, SECURITIES REGULATION (2d ed. 1951).

54 Medicare and Medicaid Patient and Program Protection Act of 1987, Pub. L. No. 100-93, 101 Stat. 680 (1987) (codified at 42 U.S.C. § 1320a-7(b)(7) (1988)).

55 The Medicare anti-kickback statute has been interpreted to cover certain self-referral. See Medicare and Medicaid Patient and Program Protection Act of 1987, Pub. L. No. 100-93, 101 Stat. 680 (1987) (codified at 42 U.S.C. § 1320a-7(b)(7) (1988)); Physician Self-Referral Improvement Act of 1995, H.R. 2173, 104th Cong., 1st Sess. (1995). However, recent court cases have cut back on the interpretive scope of the statute and the ability to enforce it. See Hanlester Network v. Shalala, 51 F.3d 1390, 1397 (9th Cir. 1995). Proposed regulations have also carved out certain safe-harbors from prosecution. See 42 C.F.R. § 1001.952 (1994).

There have been efforts to restrict physician self-referral, see the Stark I and Stark II statutes, 42 U.S.C. § 1395nn (Supp. V. 1993), and regulations promulgated under these statutes, 42 C.F.R. § 411.350 (1994). However, after the House of Representatives came under Republican control in the 104th Congress, Representative William M. Thomas (R-Cal.) proposed to repeal or weaken the Stark law and has held hearings. See Hearings on Physician Self-Referral Before the Subcomm. on Health of the House Comm. on Ways and Means, 104th Cong., 1st Sess. (1995). Representative Stark has subsequently introduced a bill to take account of some of the Republicans’ main concerns in an effort to stave off repeal of the statute. See Physician Self-Referral Improvement Act of 1995, H.R. 2173, 104th Cong., 1st Sess. (1995); Iglehart, John K., Congress Moves to Regulate Self-referral and Physicians’ Ownership of Clinical Laboratories, 322 NEW ENG. J. MED. 1682, 1682 (1990)Google Scholar; Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, tit. 6 § 6204, 103 Stat. 2236 to 2243 (1991).

56 See, e.g., CAL. Bus. & PROF. CODE §§ 650, 654.1 to .2 (West 1990); FLA. STAT. ANN. §§ 455.25, 458.331 (West 1991); MICH. COMP. LAWS ANN. § 333.6221 (West 1992); WASH. REV. CODE ANN. § 19.68 (1989). See also OFFICE OF INSPECTOR GEN., DHHS, PHYSICIAN DRUG DISPENSING: AN OVERVIEW OF STATE REGULATION (1988).

57 In re Kline, 59 A.2d 14, 14 (N.J. Ch. 1948).

58 BOGERT & BOGERT, supra note 25.

59 Id.

60 Alberts v. Devine, 479 N.E.2d 113, 120 (Mass.), cert. denied, sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985); Humphers v. First Interstate Bank of Or., 696 P.2d 527, 529-30 (Or. 1985); Horne v. Patton, 287 So. 2d 824, 829 (Ala. 1974); Ricks v. Budge, 64 P.2d 208, 211-12 (Utah 1937).

61 See generally Schware v. Board of Bar Examiners of N.M., 353 U.S. 232, 233 (1957).

62 WILLIAM O. MORRIS, REVOCATION OF PROFESSIONAL LICENSES BY GOVERNMENTAL AGENCIES (1984); RANDOLPH P. REAVES, THE LAW OF PROFESSIONAL LICENSING AND CERTIFICATION (1984); Joel Brinkley, State Medical Boards Disciplined Record Number of Doctors in ‘85, N.Y. TIMES, Nov. 9, 1986, at Al.

63 See generally REAVES, supra note 62.

64 See MORRIS, supra note 62, at 204-14; REAVES, supra note 62.

65 BRIGHAM AND WOMEN's HOSP., CONFLICT OF INTEREST POLICY (Jan. 1989); MASSACHUSETTS GEN. HOSP., CODE OF CONDUCT AND POLICY ON CONFLICTS OF INTEREST (May 27, 1988) [hereinafter CODE OF CONDUCT AND POLICY].

66 See INSTITUTE OF MEDICINE, MEDICARE: A STRATEGY FOR QUALITY ASSURANCE 107-09 (Kathleen N. Lohr ed., 1990); Lohr, Kathleen N. & Schroeder, Steven A., A Strategy for Quality Assurance in Medicare, 322 NEW ENG. J. MED. 707, 707-12 (1990)Google Scholar.

67 Jaffe, Gregory A., Institutional Ethics Committees: Legitimate and Impartial Review of Ethical Health Care Decisions, 10 J. LEGAL MED. 393, 393-431 (1989)Google Scholar.

68 CODE OF CONDUCT AND POLICY, supra note 65, at 6-7.

69 AMERICAN MEDICAL ASS'N, MEMBERSHIP FACTS (1989).

70 AMERICAN MEDICAL ASS'N, CURRENT OPINIONS OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS OF THE AMERICAN MEDICAL ASSOCIATION, Opinion 8.03 (1986). For a discussion of the history of the AMA's stance on conflicts of interest, see RoDwIN, supra note 8, at 19-45.

71 Since 1992, the AMA has provided clarifications interpreting its guidelines on gifts and conflicts of interest, in particular cases such clarifications are issued infrequently.

72 AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES (5th ed. 1982); SURGEONS, STATEMENTS ON PRINCIPLES, supra note 38; AMERICAN OCCUPATIONAL MEDICAL ASS'N, CODE OF ETHICAL CONDUCT FOR PHYSICIANS PROVIDING OCCUPATIONAL MEDICAL SERVICES (1976); American Thoracic Soc'y, The Potential for Conflict of Interest of Members of the American Thoracic Society, 137 AM. REV. RESPIRATORY DISEASE 489-90(1988); Academy Advisory Opinion of the Code of Ethics: Advertising Claims Containing Certain Potentially Misleading Phrases, 93 OPHTHALMOLOGY 273-75 (1986).

73 Chren, Mary-Margaret et al., Doctors, Drug Companies, and Gifts, 262 JAMA 3448, 3448 (1989)Google Scholar; Jenike, Michael A., Relations Between Physicians and Pharmaceutical Companies: Where to Draw the Line, 322 NEW ENG. J. MED. 557 (1990)Google Scholar.

74 American Medical Ass'n, Council on Ethical and Judicial Affairs, Gifts to Physicians from Industry, 265 JAMA 501, 501 (1991).

75 BOGERT & BOGERT, supra note 25.

76 The federal Medicare program is now developing institutions to hold physicians to standards of technical performance and quality. See Michael Betz & Lenahan O'Connell, Changing Doctor-Patient Relationships and the Rise in Concern for Accountability, 31 Soc. PROBS. 84, 84-85 (1983); Relman, Arnold S., Assessment and Accountability: The Third Revolution in Medical Care, 319 NEW ENG. J. MED. 1220, 1221 (1988)Google Scholar.

77 Epstein, Arnold M., The Outcomes Movement-Will It Get Us Where We Want to Go?, 323 NEW ENG. J. MED. 266, 266(1990)Google Scholar.

78 See generally Wolf, Susan M., Quality Assessment of Ethics in Health Care: The Accountability Revolution, 20 AM. J.L. & MED. 105 (1994)Google Scholar. See also RODWIN, supra note 8, at 210-11, 244-47.

79 For a discussion of conflicting roles, see Field, Mark G., Structured Strain in the Role of the Soviet Physician, 58 AM. J. Soc. 493 (1953)Google Scholar; Levinsky, supra note 40, at 1573-75; Toulmin, Stephen, Divided Loyalties and Ambiguous Relationships, 23 Soc. Sci. & MED. 783 (1986)Google Scholar.

80 THOMAS S. SZASZ, LAW, LIBERTY, AND PSYCHIATRY: AN INQUIRY INTO THE SOCIAL USES OF MENTAL HEALTH PRACTICES 45-46 (1963); Developments in the Law: Civil Commitment of the Mentally Ill, 87 HARV. L. REV. 1190(1974).

81 Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976). In order to preserve his patient's confidences, a psychiatrist did not reveal the patient's intent to kill a named individual. The patient did murder the individual and the deceased person's family brought suit. The California Supreme Court held that a psychiatrist has a duty to warn an individual known to be at risk of imminent harm and that this duty overrides the patient's right to confidentiality. Id. at 346-47.

82 Many states have statutes requiring that physicians report certain sexually transmitted diseases.

83 See American Medical Ass'n, Council on Ethical and Judicial Affairs, Ethical Issues Involved in the Growing AIDS Crisis, 259 JAMA 1360, 1360 (1988). But see Doe v. Health/Kansas City, Inc., No. 88C-5149 (D. Kan. Oct. 17, 1988) (Chipman, J.) (enjoining physicians in an HMO from notifying a man's former wife of his HIV status).

84 Daniels, Norman, Why Saying No to Patients in the United States is So Hard: Cost Containment, Justice, and Provider Autonomy, 314 NEW ENG. J. MED. 1380, 1381-82 (1986)Google Scholar; Leaf, Alexander, The Doctor's Dilemma—and Society's Too, 310 NEW ENG. J. MED. 718, 718-19 (1984)Google Scholar.

85 Reagan, Michael D., Physicians as Gatekeepers: A Complex Challenge, 317 NEW ENG. J. MED. 1731, 1731-32 (1987)Google Scholar; Somers, Anne R., And Who Shall Be the Gatekeeper? The Role of the Primary Physician in the Health Care Delivery System, 20 INQUIRY 301, 310-11 (1983)Google Scholar; Stone, Deborah A., Physicians as Gatekeepers: Illness Certification as a Rationing Device, 27 PUB. POL'Y 227, 227-29 (1979)Google Scholar.

86 GERALD R. WINSLOW, TRIAGE AND JUSTICE 95-98 (1982).

87 Zawacki, Bruce E., ICU Physician's Ethical Role in Distributing Scarce Resources, 13 CRITICAL CARE MED. 57 (1985)Google Scholar.

88 DIANA CHAPMAN WALSH, CORPORATE PHYSICIANS: BETWEEN MEDICINE AND MANAGEMENT (1987); Walsh, Diana Chapman, Divided Loyalties in Medicine: The Ambivalence of Occupational Medical Practice, 23 SOC. SCI. & MED. 789, 790-92 (1986)Google Scholar.

89 See Arlene K. Daniels, Military Psychiatry: The Emergence of a Subspecialty, in MEDICAL MEN AND THEIR WORK 145, 145-46 (Eliot Freidson & Judith Lorber eds., 1972); Howe, Edmund G., Ethical Issues Regarding Mixed Agency of Military Physicians, 23 Soc. Sci. & MED. 803, 803 (1986)Google Scholar.

90 Thomas H. Murray, Divided Loyalties in Sports-Medicine, PHYSICIAN & SPORTSMEDICINE, Aug. 1984, at 134, 134.

91 UNIFORM ANATOMICAL GIFT ACT (1987), 8A U.L.A. § 15 (adopted by fifteen states, establishes procedures for organ donation). See generally Susan Martyn et al., Required Request for Organ Donation: Moral, Clinical, and Legal Problems, HASTINGS CENTER REP., Apr.-May 1988, at 27, 27-28.

92 AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PATIENT CHOICE: MATERNAL-FETAL CONFLICTS (Oct. 1987) (finding that the physicians’ primary duty is to the mother). See generally SHERMAN ELIAS & GEORGE J. ANNAS, REPRODUCTIVE GENETICS AND THE LAW 253-62 (1987); Annas, George J., Protecting the Liberty of Pregnant Patients, 316 NEW ENG. J. MED. 1213 (1987)Google Scholar (arguing against forcing women to follow physicians’ advice); Field, Martha A., Controlling the Woman to Protect the Fetus, 17 LAW MED. & HEALTH CARE 114 (1989)Google Scholar (arguing against forcing medical choices for women for the sake of the fetus). But see JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 173- 94 (1994) (discussing parents’ obligation to take steps to avoid harming the fetus).

93 Helen Halpin Schauffler & Tracy Rodriguez, Exercising Purchasing Power for Prevention: Recent Experiences of the Pacific Business Group on Health, HEALTH AFF. (forthcoming Spring 1996).

94 Timothy Stoltzfus Jost, Health System Reform: Forward or Backward with Quality Oversight?, 271 JAMA 1508 (1994); Kassirer, Jerome P., The Use and Abuse of Practice Profiles, 330 NEW ENG. J. MED. 634 (1994)Google Scholar; Kassirer, Jerome P., The Quality of Care and the Quality of Measuring It, 329 NEW ENG. J. MED. 1263 (1993)Google Scholar.

95 Blum, John D., Economic Credentialing: A New Twist in Hospital Appraisal Processes, 12 J. LEGAL MED. 427 (1991)Google Scholar; Blum, John D., Economic Credentialing Moves from the Hospital to Managed Care, 22 J. HEALTH CARE FIN. 60, 62 (1995)Google Scholar.

96 Iglehart, John K., The Struggle Between Managed Care and Fee-for-Service Practice, 331 NEW ENG. J. MED. 63 (1994)Google Scholar.

97 Thurow, Lester C., Learning to Say “No,” 311 NEW ENG. J. MED. 1569 (1984)Google Scholar; Thurow, Lester C., Medicine Versus Economics, 313 NEW ENG. J. MED. 611 (1985)Google Scholar.

98 E. HAAVI MORREIM, BALANCING ACT: THE NEW MEDICAL ETHICS OF MEDICINE's NEW ECONOMICS 1-2 (1991); Morreim, E. Haavi, Cost Containment and the Standard of Medical Care, 75 CAL. L. REV. 1719, 1723-24 (1987)Google Scholar; E. Haavi Morreim, Cost Containment: Challenging Fidelity and Justice, HASTINGS CENTER REP., Dec. 1988, at 20, 20.

99 Alan Williams, Medical Ethics Health Service Efficiency and Clinical Freedom, in NUFFIELD/ YORK PORTFOLIOS 1-8, Folio 2 (A.J. Culyer ed., 1984).

100 See DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987); DAVID MECHANIC, FROM ADVOCACY TO ALLOCATION: THE EVOLVING AMERICAN HEALTH CARE SYSTEM (1986).

101 The interests of patients as a group, of course, often coincide with the interests of individual patients. But just as promoting individual civil rights is not always consistent with policies that produce the greatest good for the greatest number, so too can the rights of individual patients clash with the interests of patients as a group. Individual rights are valuable precisely because they can act as a trump card. They prevail in the face of inconsistent policies that may better serve collective welfare. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977). The value of fiduciary obligations is precisely that it will further the interests of patients as individuals in the face of policies that aim to promote the welfare of groups of patients, medical consumers, or society as a whole.

102 THOMAS S. KUHN, THE STRUCTURE OP SCIENTIFIC REVOLUTIONS 67 (2d ed. 1970).

103 Id. at 68.

l04 Tamar Frankel, Fiduciary Duties as Default Rules (1995) (unpublished manuscript) (on file with the Boston University Law Review). See generally Butler, Henry N. & Ribstein, Larry E., Opting Out of Fiduciary Duties: A Response to the Anti-Contractarians, 65 WASH. L. REV. 1 (1990)Google Scholar; Coffee, John C., Jr., The Mandatory/Enabling Balance in Corporate Law: An Essay on the Judicial Role, 89 COLUM. L. REV. 1618, 1618-19 (1989)Google Scholar; Hall, Mark A., Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 760-64 (1994)Google Scholar; Havighurst, Clark C., Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755 (1992)Google Scholar.

105 Rod win, Marc A., Patient Accountability and Quality of Care: Lessons from Medical Consumerism and the Patients’ Rights, Women's Health and Disability Rights Movements, 20 AM. J.L. & MED. 147, 166 (1994)Google Scholar; Marc A. Rodwin, The Elusive Quest for Affordable Health Care, I WIDENER L. SYMP. J. (forthcoming 1995); Marc A. Rodwin, Consumer Protection and Managed Care: Issues, Reform Strategies, Trade-offs, 32 Hous. L. REV. (forthcoming 1996).

106 CLARK, supra note 14; I SCOTT & FRATCHER, supra note 12; WOLFRAM, supra note 14.

107 KARL N. LLEWELLYN, THE BRAMBLE BUSH (1951); Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401-06 (1950).

108 See supra note 24.