October 22, 2013
Hall Center for Law and Heatlh: McDonald - Merrill - Ketcham Award
Are Physicians Fiduciaries for Their Patients?
Speaker: Professor Maxwell J. Mehlman, Arthur E. Petersilge Professor of Law and Director of the Law-Medicine Center, Case School of Law, and Professor of Biomedical Ethics, Case School of Medicine
Location: Wynne Courtroom and Atrium,Inlow Hall, 530 W. New York Street, Indianapolis, IN
Contact: Hall Center for Law and Health at firstname.lastname@example.org
Summary of Topic: Given the need for ill-informed patients lacking bargaining power to trust their physicians, the patient-physician relationship would seem to be a classic example of a fiduciary relationship. Numerous scholars and judges have questioned this assumption, however. The lecture examines the reasons for their skepticism and explains why they are misguided: Regarding doctors as fiduciaries for their patients not only is essential for the patients’ well-being, but necessary to preserve the physicians’ status as learned professionals in the face of increasing pressure to act contrary to their patients’ interests. But there are a variety of fiduciary relationships, and they vary markedly in terms of the obligations that the fiduciaries owe to the beneficiaries and the degree to which the law allows beneficiaries to modify or waive these obligations. The lecture therefore proceeds to consider such details as whether physicians may ever act in their own self-interest at the expense of the patient’s health; the circumstances, if any, in which physicians may sacrifice the welfare of their patients in order to benefit other patients or society; whether patients can waive or modify the physicians’ fiduciary duty; and whether the physician can fulfill the duty merely by disclosing a conflict of interest to the patient. The lecture then examines the relevant case law and concludes by showing how the cases would have been decided if the judges had properly understood the fiduciary nature of the patient-physician relationship.
Biography of Speaker: Maxwell J. Mehlman is Arthur E. Petersilge Professor of Law and Director of the Law-Medicine Center, Case School of Law, and Professor of Biomedical Ethics, Case School of Medicine. He received his J.D. from Yale Law School in 1975, and holds two bachelors degrees, one from Reed College and one from Oxford University, which he attended as a Rhodes Scholar. Prior to joining the Case faculty in 1984, Professor Mehlman practiced law with Arnold & Porter in Washington, D.C., where he specialized in federal regulation of health care and medical technology. In addition to numerous articles, he is the co-author, with Jeffrey Botkin, of Access to the Genome: The Challenge to Equality; co-editor, with Tom Murray, of the Encyclopedia of Ethical, Legal and Policy Issues in Biotechnology; co-author, with Lori Andrews and Mark Rothstein, of Genetics: Ethics, Law and Policy, the first casebook on genetics and law, now in its third edition; and author of Wondergenes: Genetic Enhancement and the Future of Society, published in 2003 by the Indiana University Press; The Price of Perfection: Individualism and Society in the Era of Biomedical Enhancement, published in 2009 by the Johns Hopkins University Press; and Transhumanist Dreams and Dystopian Nightmares: The Promise and Peril of Genetic Engineering, published in 2012 by the Johns Hopkins University Press. Professor Mehlman served from 1987 to 1990 as a member of the Committee to Design a Strategy for Quality Review and Assurance in Medicare of the Institute of Medicine National Academy of Sciences. From 1988 to 1994, he served as special counsel to the Special Committee on Medical Malpractice of the New York State Bar. In 1992, he was a consultant on medical malpractice to the American Association of Retired Persons. In 2003, he served as an advisor for the Project on Medical Liability in Pennsylvania funded by The Pew Charitable Trusts. In 2007, along with Dale Nance, Professor Mehlman authored a book entitled Medical Injustice: The Case Against Health Courts, with research funding from the American Association for Justice Robert L. Habush Endowment. In 2011 and 2012, he authored several articles on the use of medical practice guidelines as the legal standard of care, again with research support from the American Association for Justice Robert L. Habush Endowment. Professor Mehlman also is the director of the Consortium on Emerging Technologies, Military Operations, and National Security, and currently is working on a grant from the National Institutes of Health to study the ethical, legal, and policy issues raised by the use of genomic science by the military. In addition to training lawyers, Professor Mehlman also teaches medical malpractice law to the medical students at the CWRU School of Medicine and the Ohio University College of Osteopathic Medicine.