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Ethics and the fiduciary obligation (June 19, 2006)
Category: Research ethics
One of the regular contributors to the IRBForum noted the publication of
the following article:
- Miller PB, Weijer C. Fiduciary obligation in clinical research. Journal
of Law, Medicine & Ethics 2006; 34(2): 424-440.
which is too recently published for me to find a good PubMed record.
Another contributor pointed out a competing viewpoint:
- Morreim EH. The clinical investigator as fiduciary: Discarding a
misguided idea. Journal of Law, Medicine & Ethics 2005; 33(3): 586-598. and
- E. Haavi Morreim, Litigation in Clinical Research: Malpractice Doctrines
Versus Research Realities, 32 J.L. Med & Eth 474, 477 (2004).
These articles caught my eye because a lot of discussion about ethical
practice refers to the fiduciary duty of a physician for his/her patients.
For example, the organization, No Free Lunch, has the following on its FAQ
list:
Q. My friends in the business world are wined and dined all the
time. Why should doctors be held to a different (higher) standard than
business people? A. Because the doctor-patient relationship, unlike
many (but not all) business relationships--but like that between a
lawyer-client or congressperson-citizen, is a fiduciary relationship. A
fiduciary is someone with specialized skills or knowledge; holds the trust
and confidence of others; is accountable and obligated both ethically and
legally; who is held to a higher standard of conduct, and who therefore
avoids conflicts of interest. All of these characteristics pertain to
physicians. Though some may see medicine as 'just a business,' clearly'at
the present time at least'patients, and society do not see it this way:
Patients rightly expect their physician to act in their (the patient's)
best interest. Patients do not enter the examining room caveat emptor.
Patients should be confident that the drug being is prescribed is the best,
the most cost-effective, not the best promoted.
www.nofreelunch.org/faqs.htm
Another interesting article is
-
Strains in the Fiduciary Metaphor: Divided Physician Loyalties and
Obligations in a Changing Health Care System [PDF]. Marc A.
Rodwint, originally published in the American Journal of Law & Medicine
1995, 21 (2&3). Accessed on 2006-06-19. (Ethics, Overview) [Excerpt]
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 .3 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. www.law.suffolk.edu/faculty/addinfo/rodwin/pubs/Physicians/Sec3.pdf
A good technical definition of fiduciary duty/obligation is at
I want to write more about this when I get the chance.
This web page was written and was last modified on
09/24/2007.
