Duty


Productive physician-patient relationships in large part depend on truth, trust and loyalty (duty) on the part of both the patient and the physician. Many of the legal and ethical dilemmas which arise in the care of patients can be better understood and resolved when considering them as issues involving these three principles.



While we have already pointed out that a legal duty to a patient is established anytime a physician begins treating him/her (even by phone), it is worthwhile to explore this duty further. The concept of duty is often considered in a legal sense (as in one of the Four Elements of Malpractice), but it is equally applicable in ethical questions. For example, problems involving conflicts of interest can be considered as questions of duty....that is, to whom does the physician owe a duty?

Common conflicts of interest (which can, and often do evolve into legal problems) that physicians frequently face include:
  • patient/family conflicts:
    A family asks a physician to intubate and mechanically ventilate their mother who is suffering from ALS...even though she has repeatedly and consistently stated she does not want this.
  • patient/patient conflicts:
    A man requests information about his wifes medical history from a physician who treats both of them....and the wife has recently terminated a pregnancy which was the result of an extramarital affair.
  • the impaired physician:
    A physician discovers that the surgeon to whom she refers patients has been performing procedures while impaired by alcohol.
  • institution/patient conflicts:
    A physician is pressured by hospital administration to use a medication protocol that she believes to be inferior to her usual therapy.
  • doctor/patient conflicts:
    A physician who is a strong pro-life supporter fails to disclose this when recommending that a patient carry a pregnancy to term despite the fact that it may jeopardize that patients health.
  • financial/patient conflicts:
    A physician with a financial stake in a radiation therapy treatment center refers all her patients with prostate cancer there (even those patients who may be better treated with a radical prostatectomy).
In each of these conflicts the physician is well served by remembering the primacy of "duty owed the patient", while "duty owed" to the patients family, a fellow physician(s), hospital administration, or personal or organizational financial gain is secondary. A caveat, however, to the primacy of "duty owed the patient" are those few situations where the physicians primary responsibility is clearly and contractually aligned with the employer; e.g. a physician is employed by a life insurance company for the sole purpose of performing physical exams on individuals purchasing insurance.


Patient Autonomy:Issues of Truth, Privacy and Confidentiality, and Informed Consent


Another guiding principle in patient-physician relationships is a respect for a patients autonomy. Put simply, patients have a right to determine what happens to them. And, in order for a patient to have some degree of control over the things that happen to them (i.e. autonomy), that patient requires a few things: to be told the truth, to enjoy both privacy and confidentiality and to be given the information necessary to make informed decisions (e.g. consent).


Telling the Truth


Health care professionals have a duty to disclose what a reasonable (and autonomous) patient would want to know. While it seems obvious that physicians should not lie to their patients, there are situations where withholding the truth is a compelling option.

For example: An elderly woman admitted with pneumonia receives, inadvertently, the fluid resuscitation intended for her roommate admitted with a gastrointestinal bleed. She subsequently has a respiratory decompensation requiring transfer to the intensive care unit, intubation and mechanical ventilation. She eventually recovers (after diuresis and antibiotics), but no one notices the error which in all probability led to her initial decline. The intern caring for these two women, and who ordered the fluid resuscitation for the wrong one, wonders if she should report the error...and if so, to whom?
In this first example, the physician questions the necessity of telling the truth and documenting an untoward (and iatrogenic) event. In general, it is necessary to document adverse events for two reasons: First, to alert the management and the patient care team about a potential problem and thus provide an opportunity for quality improvement; Second, to create a record about a specific incident which can serve as a basis for an investigation in case of legal action. The documentation usually occurs on three levels: Recording in the medical record, Filling out an incident report, and telling the patient/family.
An objective description, recorded by both medical and nursing staff, should be made in the medical record of any adverse incident (even if it does not result in any injury) experienced by a patient. In addition, follow-up from the incident, including any treatment, diagnostic studies, observations or pertinent conversations with the family should also be recorded. An incident report, or the fact that an incident report was filled out, should not be recorded in the chart.
An incident report should be an equally objective description of the event, recorded by the individual most familiar with the incident. The writers judgment as to the cause of the event should not be included. No copies of the incident report should be made, nor should it be included or noted in the medical record, and it should be received in the Office of Legal Affairs within 48 hrs. Incidents which should be reported to the Office of Legal affairs via an incident report include: 1) Errors in the care of patients; 2) Adverse events including falls (including visitors), other injuries and development of conditions unrelated to reason patient was admitted (e.g. pressure sores, new DVT, etc.).
Finally, there is wide agreement that patients and their families should be told of any and all adverse events...whether or not an injury is sustained. As previously stated, a physician-patient relationship based on communication and trust is the cornerstone of avoiding malpractice claims. Many episodes of patient dissatisfaction (which can lead to negligence claims) can be diffused by a reasonable explanation from the physician who has established a relationship with the patient and his/her family.

A second example: A physician, who has cared for an elderly couple for years, discovers that the woman has had a recurrence of her breast cancer...and that it is widely metastatic. The womans husband somehow discovers this before the physician has a chance to tell the woman. The husband then calls the physician and frantically tries to persuade the physician not to tell his wife, stating "she has always said she will kill herself if the cancer comes back".
In this case, the husband wants the physician to practice "benevolent deception". That is, the husband wants the physician to adopt a paternalistic role and make unilateral decisions for the good of the patient. Except in (very) rare cases of "therapeutic privilege", where the physician truly feels that the patients health would be adversely effected by hearing the truth, ethicists and risk managers agree that it is best to avoid "benevolent deception". Note also that buried in this case is a question of duty. The physician clearly has a duty to the patient (the woman) and if there is a concern that the patient would become suicidal if told the truth, then the physician needs to identify and help the patient work through that problem, not avoid the issue and adopt a paternalistic role.