What Doctors Can Learn From Lawyers About Conflicts of Interest

Abstract

Some physicians are receiving financial incentives for enrolling their patients in clinical studies, while others have financial interests in companies that will profit from the products under investigation. These practices are arguably permissible under both applicable law and codes of medical ethics. Further, physicians are not required even to disclose their financial conflicts when advising patients to enroll in a clinical experiment. This article explores differences between the medical and legal professions' treatments of conflicts of interest in order to explain 1) why physicians have failed to adequately address conflicts not only in clinical research, but also in other aspects of medical practice, and 2) how these conflicts should be addressed. The article concludes that physicians do not fail to recognize that there may be conflicts between their financial interests and the interests of their patients, but rather that the typical physician's response is that conflicts of interest are pervasive in medical practice and it is the ethical duty of physicians to resist temptation. Under such a broad definition of conflicts of interest, it is not surprising that physicians resist required disclosures or other precautionary measures. Lawyers, however, do not typically define "conflicts of interest" as broadly as physicians, but rather confine "conflict-of-interest doctrine" to circumstances that are unique to specific lawyers. The article further concludes that many (but not all) of the types of conflicts currently facing clinical researchers are proper subjects for regulation by conflict-of-interest doctrine. Applying this doctrine, it is clear that most cases will involve conflicts of interest that, at a minimum, must be disclosed to the patient. At least some conflicts, however, should be deemed nonconsentable, such as the receipt of financial incentives for enrolling patients in clinical studies, given the lack of benefits of permitting such payments, either to society at large or to patients themselves.