C. Liability for Breach of Fiduciary Duty

Based on the foregoing, medical malpractice law seems generally unconcerned about the subjective aspect of physicians' clinical judgments and thus would seem to provide no remedy for the operation of bias in medical decision making. A limited exception to this general rule is suggested in those cases where a patient alleges a physician's failure to disclose to the patient conflicts of interest the physician faces in making therapeutic decisions. These claims object to the physician's failure to conform to the ethical principles that undivided loyalty to a patient should guide a physician's decisions, and that any influence on a physician's decisions--other than the patient's welfare--must be disclosed to the patient. Thus, the fiduciary nature of the physician's obligation to the patient brings into focus the subjective motivations for the physician's choices.

Indeed, the decision of the California Supreme Court in Moore v. Regents of the University of California, wedded the concepts of informed consent *250 and the disclosure obligation flowing from a physician's fiduciary duty. The plaintiff, Moore, sought treatment for his hairy-cell leukemia at UCLA Medical Center. In the course of treating Moore for the leukemia, his physician, Dr. Gold, withdrew samples of Moore's blood, bone marrow aspirate and other bodily substances, and ordered the removal of Moore's spleen. Unbeknownst to Moore, however, Dr. Gold knew that the cells removed from Moore's body could be substantially valuable to researchers seeking to commercially develop cell lines. The court upheld Moore's action against Dr. Gold for failing to disclose his research and economic interests in Moore's cells before obtaining Moore's consent to the procedures by which those cells were removed. The court explained that the cause of action could be characterized “either as the breach of a fiduciary duty to disclose facts material to the patient's consent or, alternatively, as the performance of medical procedures without first having obtained the patient's informed consent.”

Thus, the California court characterized a physician's relationship to the patient as fiduciary in nature and stressed that the fiduciary obligation required the physician's disclosure of “personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment.” While not holding that the mere existence of potential conflicts of interest breached the physician's fiduciary duty, the court noted that a reasonable patient would want to know of such conflicts in deciding whether to consent to a recommended procedure because of the possibility that “a physician who does have a preexisting research interest might, consciously or unconsciously, take that into consideration in recommending the procedure.” Thus, according to the Court, the physician's fiduciary obligation requires, at a minimum, that he inform patients of any subjective motives that might influence his professional judgment.

By implicitly recognizing that a physician's professional judgment should not be influenced by considerations unrelated to the patient's health, Moore suggests that pursuing a cause of action for breach of fiduciary duty may prove more fruitful than a regular medical negligence action for a patient complaining of biased medical decisions. But does a physician stand in a fiduciary relationship to his patients? The law of fiduciaries applies to relationships in which one party (the fiduciary) is entrusted to use power or property for the benefit of another; this entrustment is often based on the fiduciary's specialized knowledge and requires the fiduciary *251 to exercise judgment in order to advance the interests of the other, who is typically unable to supervise adequately the fiduciary's performance. Based on this combination of factors involving entrustment, expertise and dependence, courts may conclude that a relationship is fiduciary in nature and, as a result, hold the fiduciary to the highest standard of conduct. The characteristics described typify the physician-patient relationship, and both commentators and the courts have recognized the physician's relationship to her patients as being fiduciary in nature. Although characterizing a physician as a fiduciary for his patients deviates somewhat from the typical understanding of a fiduciary as one who holds the financial interests of another in trust, the physician's fiduciary duty is a fitting legal analog to the physician's ethical duty to act with undivided loyalty in pursuing the patient's best interests.

Despite this broad agreement that a physician's relationship to her patients is fiduciary in character, the specific nature of the resulting obligations *252 is less clear. At the most basic level, a fiduciary's duty of loyalty requires her to act for the benefit of another, and she cannot elevate her own interests over those of the beneficiary. This duty may sometimes preclude the fiduciary from engaging in economic or other arrangements that may create a conflict of interest between the fiduciary and the beneficiary of the relationship, but in some instances the risks posed by such arrangements may be mitigated by the fiduciary's disclosure of and the beneficiary's consent to the arrangement.

Although a patient's claim of biased medical decisions will not typically involve a financial conflict of interest, the patient can assert that the physician breached his fiduciary obligation of undivided loyalty to the patient. Specifically, the patient could argue that, by allowing a clinically irrelevant characteristic to influence his choice of treatment, the physician failed to act solely in the patient's best interest. This argument carries the most force when a physician consciously allows a known animus or passion against a particular group to affect his clinical decisions for a member of that group. An example of this is a physician whose homophobia leads him to provide inferior treatment for gay patients. In that circumstance, the physician is consciously elevating his own psychic or emotional interests in acting on his animus over his obligation to advance the patient's best interests. Nevertheless, one could argue--in light of the law's imposition of the “highest standard of conduct” on fiduciaries--that even cases involving unconscious bias present a violation of a physician's fiduciary duties to his patients. Given physicians' high level of expertise and the substantial deference that many patients accord to physicians' recommendations, it seems plausible that physicians' fiduciary obligations should include an obligation to “self police” their decision-making processes for any illegitimate influence. Certainly, the patient, who typically does not have the physician's specialized knowledge and training and whose very need for medical treatment creates vulnerability, is in no position to effectively monitor the physician's thought processes.

But even if we understand a physician's fiduciary duties as including an obligation to engage in self-reflective assessment of his own clinical decisions in order to identify and screen out any bias, does a patient who can prove that her physician violated this duty have any legal recourse? Commentators have noted that the courts' willing characterizations of physicians as fiduciaries have not been matched by an enthusiasm for holding physicians legally accountable. A few courts have given teeth to physicians' *253 fiduciary obligations, but many of these cases have involved physician dishonesty or abuse of power, arguably separate from the physician's actual treatment or diagnosis of the patient. By contrast, several courts have refused to allow a separate cause of action for breach of fiduciary duty based on a physician's treatment of a patient.

In Neade v. Portes a widow sued the physician of her late husband for repeatedly failing to order an angiogram that would have revealed her husband's coronary artery blockage. The plaintiff alleged both that Dr. Portes acted in a medically negligent manner in failing to authorize the angiogram and that he breached his fiduciary duty to the patient by so failing and refusing to disclose to the patient financial incentives that created a financial conflict of interest between him and the patient. While acknowledging that Illinois courts had recognized the physician-patient relationship as fiduciary in nature, the Illinois Supreme Court refused to recognize a separate cause of action for breach of fiduciary duty on the facts of the case. The court reasoned that both the fiduciary duty action and the malpractice action alleged the same operative facts and the same injury. It concluded that, because the negligence claim of the plaintiff sufficiently addressed the alleged wrongdoing, the fiduciary duty claim would be duplicative. The court also noted that courts in other jurisdictions similarly refused to recognize fiduciary duty claims against a physician when the essential allegations were of medical negligence.

What is the importance of the court's reasoning in Neade for a plaintiff who pursues a breach of fiduciary duty claim against her physician *254 based on an allegedly biased medical decision? If the plaintiff pursuing a fiduciary breach action received treatment or disclosure that fell below the applicable standard of care, a court hearing the claim may conclude that the plaintiff's suit impermissibly recast a malpractice cause of action, perhaps to evade a shorter statute of limitations or avoid legislatively imposed procedural hurdles to medical malpractice claims. As discussed above, however, in many cases the victim of a biased medical decision may have received treatment that fits comfortably within the range of accepted medical options. That plaintiff complains not simply of substandard treatment (i.e., treatment that falls below the standard of care), but of suboptimal treatment (i.e., treatment that was not chosen solely to advance the patient's best medical interests). Moreover, the plaintiff also complains of dignitary harm caused by the violation of trust that occurs when a physician's personal bias infects his clinical judgment in making decisions for the patient. These harms, which flow directly from the physician's violation of the patient's trust, are arguably distinguishable from and independent of the harms complained of in a medical malpractice action.

In addition, allowing a physician's personal bias against a clinically irrelevant characteristic of the patient to affect the physician's judgment seems more ethically questionable and less amenable to amelioration than the financial conflicts of interest at issue in Neade. Although some would argue that a breach of fiduciary obligation inheres in a physician's mere agreement to be compensated in a way that gives him incentives to provide patients with less treatment, others could point out that cost control is an imperative in contemporary health care and that financial incentives for physicians may be an acceptable mechanism for encouraging cost-conscious medical practice. From this viewpoint, a financial conflict of interest is a “consentable” conflict, and the doctor may satisfy his obligation by disclosing the existence of any financial incentives to his patients so that they can better assess their medical options. Moreover, *255 third parties external to the relationship may have the ability (and perhaps the obligation) to inform the patient of incentives.

Applying parallel reasoning to an alleged fiduciary breach in the form of a biased medical decision illuminates the critical distinctions between complaints of financial conflicts of interest and complaints of physician bias. Do we contemplate a conversation in which a physician informs a patient with a disability that the physician is biased against disabled persons and that he frankly does not think their lives are worth as much as those of “normal” people? Or perhaps a conversation in which a doctor tells an African-American patient that he is biased against African Americans because, based on his personal experience, he doesn't think they are likely to comply with prescribed treatment regimens?

To my mind, these conversations are neither probable nor desirable responses to the problem of physician bias. Are physicians, if they are aware of their own biases, likely to be willing to disclose them to their patients? Who, but the physician, would be in a position to be able to disclose such biases? And even if physicians did disclose their biases, would that legitimate the influence of those biases on their medical decisions? My response (with which I hope that at least some would agree) would be that bias, even if disclosed, remains problematic because it may serve to interfere with a patient's receipt of optimal medical care without advancing any legitimate, countervailing interest. We may accept financial conflicts of interests as consentable conflicts whose existence do not inevitably breach the physician's fiduciary obligations because we recognize they may advance the social goal of health care cost containment. But what social goal is advanced by permitting physicians' personal biases to infect their medical judgment?

Of course, even if a case can be made that the Illinois court's reasoning in Neade should not apply to claims alleging that the operation of physician bias constituted a breach of fiduciary duty, a big question still looms: What can a plaintiff recover if she successfully persuades the trier of fact that bias affected her physician's choice of treatment for her? As discussed above, sometimes a plaintiff could claim that bias influenced her doctor to prescribe a treatment other than the one most likely to improve her health. Even if the treatment prescribed fell within the standard of care, the plaintiff could still argue that it was suboptimal and that she suffered injury as a result. If the plaintiff incurred physical injury and she can show *256 that the optimal treatment would have allowed her to avoid the injury, she can argue that the harm suffered flowed directly from the operation of bias, which was in breach of the defendant's fiduciary duty. In this case, the plaintiff could highlight that, because no medical malpractice action lies against the physician in this case (because he complied with the standard of care), the fiduciary breach action will not duplicate a negligence action. Of course, courts may be disinclined to impose liability on a doctor who has satisfied the standard of care; the plaintiff's task would be to convince the court that the breach of fiduciary duty is a wrong independent of compliance with the standard of care.

By contrast, if the plaintiff claims that bias influenced her physician's choice of treatment, but she cannot show that the biased treatment caused any physical injury, her task is even tougher. The plaintiff must convince the court of the appropriateness of recovering damages for a purely dignitary harm--the harm to her dignity as a person, caused by her physician's betrayal of her trust. The defendant doctor would doubtless argue that damages should be recoverable only on a showing of actual physical harm, as is required in a malpractice action. The plaintiff can point out, however, that a court may allow the recovery of damages for dignitary harms in informed consent cases because the failure of informed consent deprives the patient of self-determination and may cause mental distress. Similarly, the fiduciary breach that occurs when personal bias influences a physician's treatment choice may well affront the patient's sense of personal dignity, damage his self image and affect his ability to trust physicians in the future. These types of harms may be compensated by damages if *257 they accompany a so-called “dignitary tort.” Admittedly, the action for a physician's breach of fiduciary duty is not currently a well-established dignitary tort. Given the recognition that damages for dignitary harm may sometimes be recovered in informed consent cases, however, arguing for the availability of such damages in a physician fiduciary breach claim is not too great a stretch.

In conclusion, unless a patient-plaintiff can show that bias caused his physician to prescribe a treatment inconsistent with the professional standard of care, the plaintiff may best voice his aggrievement in an action alleging that biased decision making breached the physician's fiduciary duty to the plaintiff. Even if the physician did not negligently treat the patient and caused the patient no physical harm, the patient who learns of his physician's bias-infected judgment is harmed by the affront to his personal dignity and integrity, and by the impact on the physician-patient relationship that such a breach of trust entails. Although some courts have recognized that physicians who breach their fiduciary duties may be held liable, others have not. Moreover, the cases recognizing the potential for liability often have involved physician conduct that was not integral to the therapeutic relationship between physician and patient. Thus, a patient who sues her doctor for breach of fiduciary duty may have to struggle to convince the court that she is not simply complaining of professional negligence and that she has suffered compensable harm beyond that associated with any physical injury. Ultimately, existing law provides the raw materials for such a claim, but it remains far from clear whether courts would stretch the existing boundaries of physician liability to encompass this cause of action. *258