This Article considers possible ways to protect a patient’s interest in receiving care and advice that reflects solely what is in the patient’s best interest and not what might be in the interest of his or her physician’s financial health. Part II reviews the importance of trust in the physician–patient relationship and examines how that relationship is affected by the conflict of interest that arises between patients and their physicians who own the medical facilities, devices, and treatment services prescribed. Part III examines the ethical and statutory restrictions that have been and are currently imposed on physicians who own facilities or services to which they refer their patients. Part IV reviews the professional, state, and federal disclosure requirements imposed on physicians who diagnose and treat patients with devices and services they own, and examines the recent research suggesting that the current disclosure requirements may do little to protect patients’ interests or to encourage patients to seek alternative care.15 Part V reviews potential alternatives to protect patients in light of such research. Part VI concludes that a total ban on physician ownership would solve the problem but, given the legal constraints on imposing such a ban, recommends a change in how physicians are paid for the medical care they provide. In cases where physicians own the equipment they use in the diagnosis and treatment of their patients, physicians could be required to bill their patients a flat fee, to be disclosed prior to the start of treatment and to cover the entire course of their patients’ care.16 This will remove entirely the temptation to use diagnostic tools or treatment services for any reason other than the best interest of the patient. In light of the empirical findings that patients trust their physicians less after learning of their physicians’ financial interests but nevertheless feel compelled to follow their physicians’ advice and help them reach their financial goals, medical, legal, and ethics scholars and decision makers should confront these realities and adopt a model that restores the proper balance between a patient’s best interest and a physician’s interest in financial gain.
Nancy L. Zisk, Investing in Health Care: What Happens When Physicians Invest and Why the Recent Changes to the Patient Protection and Affordable Care Act Fail to Protect Patients from Their Physicians’ Self-Interest, 36 SEATTLE U. L. REV. 189 (2012).