Adding Insult to Injury: When Doctors Lie to Patients

Last Summer, I wrote about the increasing number of doctors that withhold critical information from their patients, especially when that information involved medical mistakes.

According to a survey published by Health Affairs, things are getting worse, not better.  The study shows that although two-thirds of doctors agree they should share serious medical errors with their patients, at least one-third did not  agree.  Worse, some doctors are not only keeping information from their patients, 1 out of 10 are actually lying about it.

In an interview with ABC News Dr. Lisa Iezzoni, lead study author and professor of medicine at Harvard Medical School, said "We don't know the exact reasons for many of these findings, but it is a sign of caution that patients need to be aware of."

What can a patient do when a trusted medical provider adds insult to injury by committing medical malpractice and then lying about it?

In Utah, this kind of conduct may be the basis for a separate claim called "breach of fiduciary duties."  The Utah Supreme Court has unequivocally held that "Doctors stand in a  fiduciary relationship with their patients."  Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256; see also Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614.

As noted jurist Benjamin Cardozo explained, “Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A [fiduciary] is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

And the Utah Supreme Court has held that fiduciaries owe several discrete duties, including duties of loyalty and honesty.  See, e.g., McLaughlin v. Schenck, 220 P.3d 146, 153-56 (Utah 2009); Smith v. Fairfax Realty, Inc., 82 P.3d 1064, 1074 (Utah 2003); Lynch v. MacDonald, 367 P.2d 464, 468 (Utah 1962).

Doctors who commit malpractice and then lie to their patients about it are not only liable for negligence, but for breaching their legal duties as fiduciaries as well.  Perhaps worst of all, they are guilty of violating the trust that their patients have placed in them.