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Fiduciary law in the hospital context: the prescriptive duty of protective intervention.

I. Introduction Hospitals are hazardous places. They house patients in complex environments rife with life-threatening diseases and toxic pharmaceuticals. Significant numbers of hospital patients have compromised immune systems and hence are susceptible to disease, including infectious disease. The spread of disease in hospitals is facilitated by the proximity of patients to one another and the density of the patient population. High risk, often life-threatening medical procedures, are routinely carried out. Hospital services are delivered in dynamic, fast paced environments that too often tax hospital service providers beyond their service limits. Both by virtue of their illnesses and the "realities" of hospital environments, patients are extremely vulnerable. It is not surprising, therefore, that despite significant efforts to mitigate risk, the incidence of adverse events and morbidity from adverse events in hospitals is distressingly high. In Canada, one out of every thirteen patients in non-specialized acute care hospitals experience adverse events and, annually, death ensues for thousands of Canadians. (1) Increasingly, hospitals, health care authorities, and health safety institutes are developing and implementing programs and strategies designed to mitigate hospital risk. (2) Legal regulation of both hospital environments and activities also contributes to the mitigation of risk. Tort law has a high profile in this task. Less important but not unimportant is fiduciary law. Together, these two bodies of judge-made law improve safety in hospitals by minimizing risk (tort law) and by requiring that service providers be dedicated to their patients' "best interests" (fiduciary law). (3) Recent developments in fiduciary law, buttressed by parallel developments in tort law, suggest unequivocally that fiduciary doctrine has expanded to include positive duties of disclosure and protective responsibility. (4) Where fiduciaries are burdened by affirmative responsibilities, much more is expected of them as guardians of their beneficiaries' interests than has historically been the case. Affirmative obligation can import a broad duty to protect beneficiaries, not only from potential misconduct of fiduciaries themselves, but from potentially harmful behaviour of third parties and even other sources of potential harm. In the health care context, such an affirmative duty has the potential to enhance the security and safety of hospitalized patients. (5) Discovery and both reporting and disclosure of risk, harm and error are the sine qua non of an effective patient safety strategy. It is disconcerting that historically there has been and there continues to be significant reluctance to report and disclose suspicious circumstances surrounding patterns of morbidity and mortality, medical error and perhaps even misconduct perpetrated by health service providers. (6) This article will suggest that there is a legal duty, not merely an ethical duty, to disclose and/or report misconduct, medical error and suspicious circumstances of serious health risks faced by patients. While this suggestion is not entirely novel, what may be new is the suggestion that the duty to disclose and report medical error, borne by health care professionals [HCPs], binds not only "perpetrators" of these errors but other HCPs who are aware of the "problem." In other words, the duty to disclose and report includes a duty to whistle-blow. It is fiduciary law that spawns this extraordinary duty. The obligation to whistle-blow is derived from the broad duty of protective intervention, which, in turn, is derived from the core duty of fiducial loyalty. (7) Fiducial loyalty also requires disclosure/reporting of medical error outside of the context of protective intervention, that is, even where there is no apparent threat of new or continuing harm to patients. Given the limited case law that focuses on HCPs/patient fiduciary relationships, demonstrating that a legal duty to whistle-blow exists requires a deep and critical examination of the broad body of fiduciary law. …