29 U. S. C. § 1104(a)(1).Google Scholar

This understanding of ERISA would have enabled the Supreme Court to avoid its tortuous reasoning in Pegram v. Herdrich, 530 U.S. 211 (2000).Google Scholar

See Davis, C., Nonprofit Hospitals and Community Benefit, National Health Law Program July 2011, available at <http://www.healthlaw.org/issues/health-care-reform/nonprofit-hospitals-and-community-benefitpdf> (last visited October 21, 2016).+(last+visited+October+21,+2016).>Google Scholar

42 U.S.C. 300gg-1--300gg-5 (2012).Google Scholar

42 U.S.C. 300gg–19 (2012).Google Scholar

42 U.S. Code § 1320e–1 (2012).Google Scholar

42 U.S. Code § 300gg–4 (2012).Google Scholar

See, e.g., Bloche, M. G., “Scandal as a Sentinel Event – Recognizing Hidden Cost-Quality Trade Offs,” New England Journal of Medicine 374, no. 11 (2016): 1001–1003.Google Scholar

Most recently, Mehlman, M. J., “Can Law Save Medicine?” Journal of Legal Medicine 36 (2016): 121–157, and M. J. Mehlman, “Why Physicians Are Fiduciaries For Their Patients,” Indiana Health Law Review 12, no. 1 (2015): 1-63.CrossRefGoogle Scholar

Crispell v. Dubois, 4 Barb. 393, 395-96, 1848 WL 5096 (N.Y. Gen. Term 1848) (“as in this case, the alleged will was prepared by an individual standing in a fiduciary relation to the deceased, and who took a large benefit under the will, more was required than bare proof of the execution….that as the plaintiff had long acted as the agent and confidential adviser of the deceased, and as her physician, and was attending her in that capacity….”).Google Scholar

Pegram v. Herdrich, 530 U.S. 211 (2000); Neade v. Portes, 739 N.E.2d 496 (Ill. 2000); D.A.B. v. Brown, 570 N.W. 2d 168, 171 (Minn. Ct. App. 1997); Shea v. Esensten, 107 F.3d 625 (8th Cir. 1997).Google Scholar

Shea v. Esensten, supra note 12 at 627.Google Scholar

Pegram v. Herdrich, 530 U.S. at 235 (“for all practical purposes, every claim of fiduciary breach by an HMO physician … would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians”); Neade v. Portes, 739 N.E.2d at 501-502 (quoting Pegram); D.A.B. v. Brown, 570 N.W.2d at 171-172 (since a kickback scheme complained of in this class action “was dependent on medical diagnosis, treatment, and care of the patients,” the class was merely suing for malpractice for failing to obtain patients' informed consent).Google Scholar

A claim for breach of fiduciary duty is complaining about disloyalty, while a malpractice action is complaining of lack of competence. See Shepherd, J. C., The Law of Fiduciaries (Toronto: Carswell Co., 1981): at 49 (“the duty of care has absolutely no necessary connection with fiduciary relationships”).Google Scholar

The common law rather than equity.Google Scholar

See Morreim, E. H., “The Clinical Investigator As Fiduciary: Discarding A Misguided Idea,” Journal of Law, Medicine & Ethics 33, no. 3(2005): 586–598, at 589 (“ … If the entrustor can prove that his fiduciary is in a conflict of interest, the law will presume that the fiduciary abused his power or exploited the entrustor, and thereby will place on the fiduciary the burden of proving he did not.”); K. Johnston, “Patient Advocates or Patient Adversaries? Using Fiduciary Law to Compel Disclosure of Managed Care Financial Interests,” San Diego Law Review 35 (1998): 951-992, at 962-963 (“In light of fiduciary law's protective function, many courts have also created special rules to help plaintiffs in these cases. These special rules recognize the fact that the ‘law watches with the greatest jealousy transactions and dealings between persons occupying a fiduciary relationship.’ For example, courts often reverse the normal rule that the plaintiff has the burden of proof in a civil case and hold that, once the plaintiff has shown that a fiduciary relationship exists, the defendant has the burden of disproving its breach. Many courts also hold that the existence of a fiduciary relationship gives rise to a presumption of fraud or undue influence that can only be rebutted by clear and convincing evidence.”).CrossRefGoogle Scholar

Frankel, T., Fiduciary Law (New York: Oxford University Press 2011): at 249–260 (describing accounting for profits, constructive trusts, injunctive relief, and the availability of punitive damages).Google Scholar

See Mehlman, “Can Law Save Medicine?” supra note 9, at 139-142.Google Scholar

Id., at 149-150.Google Scholar

See Hall, M. A., “The Legal and Historical Foundations of Patients as Medical Consumers” Georgetown Law Journal 96, no. 2 (2008): 583–597, at 583.Google Scholar

Code of Medical Ethics of the American Medical Association, Ch. 1, Art, 1, § 1 (1847), available at <http://www.ama-assn.org/resources/doc/ethics/1847code.pdf> (last visited October 21, 2016).+(last+visited+October+21,+2016).>Google Scholar

See Mehlman, “Can Law Save Medicine?” supra note 9, at 155.Google Scholar