Against Fiduciary Utopianism: The Regulation of Physician Conflicts of Interest and Standards of Care
This Article critically examines calls by scholars, legislators, and regulators advocating the imposition of fiduciary duties upon a broad range of actors including judges, jurors, agencies, parents, friends, and even entire countries. The Article examines the physician-patient relationship—an archetypal and frequently cited relationship in which fiduciary duties, administered by courts, are asserted to work well. It argues that some of the most significant problems fiduciary duties are used to address like asymmetry of information, conflicts of interest, and professional conduct have not only been handled badly by courts, but have actually found more effective resolution through legislative fact-finding, acknowledgment of the complexity of medical practice, and ultimately regulatory solutions aimed at sources of conflicts of interest and specific circumstances in which claims for medical malpractice arise. Behind many of these initiatives are physicians themselves—who experience the sources of potential conflicts and endeavor to create self-regulatory and legislative solutions to them. In contrast, court-administered fiduciary duties are often marginalized as judicially manageable claims related to the duties of loyalty and the duty of care converge, litigants focus on settlement, and the high expectations held for fiduciaries are rarely enforced. The Article concludes that not only may imposing more fiduciary duties on more relationships not generate the benefits many scholars suggest, but that doing so will stymie more targeted and effective solutions to problems that occur in trust relationships.