Sélectionner une page

Fiduciary duties arise from a legal relationship between two or more parties. The trustee is the party to whom the obligation is imposed. The duty of loyalty in the medical field can mean that a physician does not prescribe procedures or medications that are not in the best interest of the patient. A physician cannot receive financial or professional incentives to prescribe a particular drug or to prescribe a particular operation. The obligation to treat patients in non-emergency situations is ambiguous. Principle VI of the American Medical Association (AMA) Principles of Medical Ethics states that « in providing appropriate patient care, except in emergencies, a physician is free to choose with whom to serve, with whom to work, and in which environment to provide medical care » [1]. Therefore, outside of EMTALA or a patient-physician relationship, there is no customary duty or ethical imperative that obliges a physician to treat every patient. Although AMA`s Council on Ethics and Judicial Affairs has found it unethical to deny treatment to patients for certain diseases, such as HIV, this decision does not indicate whether physicians are wrong to reject patients without certain conditions or disabilities [2]. Ethical, professional and legal cooperation is needed to resolve tensions between the legal rights and duties of physicians and their ethical responsibilities.

There is little case law, literature, and legislation on a physician`s legal duty of care during a pandemic.5 Physicians can better understand their duties by becoming familiar with the general legal doctrines and laws developed in non-pandemic cases. For example, physicians working during a pandemic may consider ending their relationship with certain patients. However, an abrupt separation of the doctor-patient relationship could lead to a claim for negligence if it causes harm to the patient that would have been foreseeable by a reasonable physician.3 Unlike the public defender, the physician faces a moral dilemma: conscience urges him to treat all patients, no matter what, but a convergence of health system factors such as increased medical liability premiums. Stagnant reimbursements from commercial insurers, escalating overheads, and personal moral beliefs can make it costly to follow one`s conscience. The relationship between patient and physician is different from the relationship between client and public defender. The doctor must receive a huge amount of information about a patient`s personal life and history to ensure effective care. Trust and honesty are at the heart of the relationship. The public defender does not ask and, in all likelihood, does not care whether his client is guilty or not.

While fiduciary relationships exist in both medicine and law, the personal values of a public defender are far less important to their client. Trust is crucial in diagnosis and treatment. If the physician harbors resentment against the patient because of lifestyle or non-adherence to treatment, the patient-physician alliance is compromised and care is ultimately compromised. The first question is to understand if the doctor is already in a therapeutic relationship with this patient. Under the common law rule of « no obligation », the physician has no legal duty to treat unless the doctor-patient relationship has formed. From day one, medical students learn that their primary obligation is to patients. But defining who their patients are is another matter. Who qualifies as a patient is a complex legal issue that has major implications for when a physician has a duty to treat, when a physician can be sued for malpractice, when a physician has « left » a patient, and other serious matters. The legal definition of a patient and the corresponding duties of the physician have been debated in state courts for more than a century, and many aspects of the issue are still being clarified. This article will examine a number of important legal cases that have helped define the patient-physician relationship in general, as well as some important exceptions to the general rule.

During a pandemic, physicians may experience tensions between their ethical responsibilities and their legal rights and obligations. For example, the Code of Ethics states that physicians have a fundamental ethical responsibility to « consider the patient`s well-being first, » but also to « promote and maintain the patient`s own health and well-being. » 24 Some universities have described the ethical dilemmas that can arise during a pandemic and developed policy statements specifically tailored to physicians` ethical obligations.27–29 The issues become more complicated when considering physicians` legal duty of care and their legal right to refuse to work in unsafe conditions. Physicians should be aware that the existence of this separate regulatory system does not deny their right to refuse to work in unsafe conditions, nor does it protect them from negligent liability for breach of their legal duty of care. Employers are required by human rights legislation to accommodate particularly vulnerable workers.15 An employer who refuses may be considered discriminatory on the basis of gender (if pregnancy is the cause of susceptibility) or disability (if an underlying medical condition is the cause of susceptibility).