I. Introduction

Why is there no tort cause of action for “ethical malpractice”? Physicians and other health care providers are expected to comply with professional standards of care regarding diagnosis and treatment, and they are liable for malpractice if they fail to do so. Modern medicine is also governed by the profession’s ethical norms, which are equally important and likewise integral to professional practice. However, when physicians violate these ethical norms, patients often have little in the way of legal recourse.[1]

The news media is replete with examples of arguably unethical conduct by physicians and other health care professionals. In just the past year, news reports have cited doctors using their own sperm to impregnate patients through in vitro fertilization;[2] careless prescribing of opioids leading to patient overdoses;[3] spreading of misinformation about COVID treatments and vaccines[4] or prescribing of drugs with no medical benefit;[5] refusals to treat unvaccinated patients;[6] implicit and explicit racism in the treatment of patients, particularly pregnant and birthing women;[7] harassment of and discrimination against colleagues;[8] violating patients’ privacy by sharing photographs and confidential information;[9] nonconsensual pelvic examinations of gynecological patients by medical students;[10] abuses of medical and research ethics by government doctors within the VA[11] and ICE systems;[12] and ongoing sexual abuse of patients,[13] including the infamous case of Dr. Larry Nassar.[14]

The most widely publicized ethical breaches, like those involving ongoing sexual assault of students and athletes, may result in adverse professional or legal actions against the wrongdoers. These may include revocation of clinical privileges at a hospital, discipline by a professional licensing board, the imposition of civil monetary penalties, or even criminal punishment.[15] Such actions may be effective in punishing these actors and deterring similar conduct in the future. However, they provide little in the way of remedies for patients or others who have suffered harm as a result of ethical breaches.[16]

The traditional model by which injured parties seek compensation in the U.S. legal system is through tort litigation. For example, when patients suffer physical injuries as a result of a physician’s medical malpractice, they can seek a tort remedy if they are able to prove that their injuries were caused by a breach of the medical profession’s standard of care.[17] But when physicians violate the ethical norms of the profession, tort recovery is not so simple.[18] Patients who suffer dignitary or even physical harms as a result of a health care provider’s failure to comply with the ethical commitments of the profession may find their claims for tort compensation rejected.[19] And even when significant physical harms result, such claims may fall outside traditional categories of tort causes of action.[20] As a result, patients who have experienced very real harms as a result of egregious misconduct may be unable to recover.

Tort law is intended to serve a gap-filling function. When two parties do not already have a preexisting contractual agreement about how to resolve disputes, and where no statutory law defines the contours of permissible behavior, the common law of tort steps in to set expectations and assign responsibility.[21] Questions about the ethical expectations of the medical profession seem well suited for this kind of resolution, particularly given the fact that ethical standards of the medical profession have gotten more concrete and more settled over time.[22]

And indeed, there are at least two situations where well-established legal precedent imposes tort liability for deviations from a norm of professional ethics. Starting in the 1950s, U.S. common law formalized the principle that physicians have a legal duty to support patients in making informed and autonomous decisions about medical treatment under the doctrine of informed consent.[23] Unlike traditional malpractice actions, tort actions for breach of informed consent are not about technical skill, medical knowledge, or diagnostic ability; rather, they are based on expectations regarding the relationship between doctor and patient. Perhaps more surprisingly, in this context the ethical norm of disclosure arose as a result of developments in the legal sphere. In other words, while traditional medical malpractice liability sets the standard of care by looking to established medical custom,[24] the imposition of liability for breaches of informed consent duties was as much an independent legal development as it was an extension of still-advancing professional norms.[25] Secondly, the long-standing ethical obligation to maintain confidentiality within the doctor–patient relationship has developed, over time, into a variety of avenues for legal recovery, though not in as consistent a way as in the context of informed consent.[26]

Over time, many ethical norms regarding health care have been integrated into the legal system by way of statutes and regulations—for example, the Federal Common Rule,[27] state health care decision-making statutes,[28] and the Uniform Determination of Death Act.[29] That said, the process of formalizing ethical norms by the legislative and administrative branches is a slow one with many roadblocks.[30] In such situations, it would be reasonable for common law to step in to fill in the gaps between well-accepted principles of medical ethics and deliberative legislative action. Defining civil liability by reference to the ethical norms of the medical profession would provide clearer guidance to health care providers about the law’s expectations for their behavior and would serve law’s expressive function[31] by bringing ethical principles to the forefront of medical practice. More importantly, it would offer a remedy to patients who are harmed by conduct that deviates from these norms and who currently have limited legal recourse.

To date, U.S. courts have been unwilling to recognize a cause of action for ethical malpractice[32]—that is, an independent claim on equal footing with claims like malpractice, breach of informed consent, breach of fiduciary duty, and negligent infliction of emotional distress. Some courts explicitly refuse to acknowledge that the ethical standards of the medical profession might be part of the standard of care that would ground a traditional malpractice claim.[33] In many cases, courts’ reasoning amounts to the circular argument that because ethical standards are not legally binding, they do not create a basis for liability.[34] And yet, this seems inconsistent with tort law’s extraordinary deference to the custom of the medical profession in establishing the standard of care and the role that common law plays in advancing policy goals that are not yet reflected in legal precedent.

This Article introduces the question of whether tort liability should be imposed when health care providers breach ethical norms. To answer this question, the Article introduces arguments from the world of legal malpractice, draws analogies to the tort of informed consent, and considers the history of clinical practice guidelines in malpractice litigation. Ultimately, this Article demonstrates that while there may be good reasons to recognize an independent legal duty to comply with the professional ethics of medical practice, there are risks to this approach as well. It analyzes the challenges of recognizing a new cause of action for ethical malpractice and concludes that a more modest approach—recognizing that ethical norms may be part of the standard of care in a traditional medical malpractice case—is, at present, the better option. Only where distinct ethical norms are universally accepted within the medical profession would it be more appropriate to recognize independent causes of action for breaches of those norms.

This Article is part of a broader scholarly inquiry about the ways in which principles of medical ethics are recognized, deferred to, or formally adopted within the U.S. legal system. Civil liability is but one way in which this might occur, and looking at the issue through the lens of tort law effectively illustrates the challenges and tensions that might arise from more formal integration of medical ethics into U.S. law.

The Article proceeds as follows. Part II offers a brief introduction to medical ethics, including the medical profession’s attempts to delineate specific ethical standards. Part III describes the traditional ways in which patients seek recovery for injuries resulting from medical harms and then introduces illustrative examples of how courts treat claims for civil recovery when plaintiffs raise claims of ethical violations. Part IV describes the various ways in which recovery for breaches of ethical standards might be structured. Part V draws on academic literature relating to legal ethics, medical ethics, and tort law to identify several compelling arguments as to why U.S. law might be reluctant to create an independent basis of tort recovery for breaches of professional ethics. It demonstrates that while these arguments all have merit, they pose no challenge to the recognition of ethical norms as being relevant to the standard of care in traditional malpractice actions. Finally, Part VI identifies avenues for future research, including practical and procedural questions about how tort law might treat claims for ethical malpractice.

II. A Brief Introduction to Medical Ethics

The Hippocratic Oath is well recognized as being foundational to the discipline of medical ethics.[35] Even those outside the medical field are likely familiar with the phrase, “First, do no harm.”[36] And yet, as modern scholars recognize, the ethical guidance the Hippocratic Oath provides is outdated, imprecise, and arguably inconsistent with modern medical practice.[37]

It is beyond the scope of this Article to provide a complete overview of the historical development of medical ethics in the United States.[38] For the purposes of this Article, it is sufficient to highlight a few points about how professional ethics have been integrated into the practice of medicine in the twentieth and twenty-first centuries.

Although ethics have always been part of medical practice, the discipline of medical ethics evolved most significantly in the mid- to late-twentieth century. Prompted in part by increased public awareness of horrific abuses in the context of medical research—such as Nazi experimentation brought to public light during the 1945–1946 Nuremberg trials and the 1972 revelation of the forty-year Tuskegee Syphilis Study undertaken by the U.S. Public Health Service—medical researchers and practitioners were put on notice that their existing practices no longer aligned with societal expectations.[39] One prominent scholar of medical ethics describes this as a “most remarkable—and thoroughly controversial—transformation” that “altered almost every aspect of the relationship between doctor and patient.”[40] In 1979, Tom Beauchamp and James Childress published Principles of Biomedical Ethics, the foundational text that identified four key principles of ethical medical practice: patient autonomy, beneficence, non-maleficence, and justice.[41] Since that time, the theory and practice of medical ethics has become integrated into formal medical education, and health care practitioners recognize ethics as being foundational to the treatment relationship.[42]

There is, however, no single code of medical ethics that physicians can point to in the same way attorneys can point to their state codes of professional conduct.[43] Much of medical ethics is “in the air,” so to speak. These ethical standards are only sometimes formalized in writing and are rarely binding and enforceable in the same way as traditional legal standards. While some general practices are uniformly recognized as core commitments of the medical profession—like protection of patient confidentiality and deference to patients’ autonomous and informed medical decision-making—applying the principles of medical ethics to specific cases of conflict requires nuanced analysis and reflection.[44] This can be seen in the plethora of scholarship by academics and practitioners of medicine in journals like the American Journal of Bioethics, the Kennedy Institute of Ethics Journal, and the Hastings Center Report, as well as in purely medical publications like the JAMA and the New England Journal of Medicine. Nearly all large hospitals and health care facilities have developed interdisciplinary ethics committees[45] to provide guidance and resolution of ethical conflicts.[46] Some health care systems, like the Cleveland Clinic, have established standing clinical ethics consultation services staffed by full-time ethicists who are fully integrated into the care team.[47]

Ethical guidance on particular areas of conflict may also be provided by professional organizations, like the American Medical Association (AMA), that publish formal statements, opinions, and judgments on frequently encountered ethical dilemmas. Given the breadth of the modern practice of medicine, these ethics statements address an incredible variety of substantive topics—including, but not limited to, surrogate decision-making for patients who lack capacity,[48] obstetric violence,[49] sexual contact with patients,[50] disclosure of financial conflicts of interest,[51] conscientious objection,[52] racial bias in health care,[53] and many others. While these ethics opinions are not binding, their guidance reflects a deliberative consensus opinion on the appropriate resolution of particular ethical conflicts.[54]

III. Compensation for Patient Injuries Under Common Law

Patient injuries arising from the acts of health care providers arise in a wide variety of contexts. Often, the avenue for recovery is clear—a patient who is negligently misdiagnosed, for example, can rely on the tort claim of medical malpractice as a basis for a claim for damages. However, some patient injuries do not fit neatly into the traditional model of medical malpractice and, furthermore, fail to meet the elements of other potential avenues for legal recovery, such as claims for battery, breach of fiduciary duty, fraud, negligent infliction of emotional distress, or breach of confidentiality.[55]

I argue that claims arising out of physicians’ ethical violations are among those most likely to slip through the cracks of established common law theories of recovery, leaving patients with no remedy. Several of the cases cited in the Introduction to this Article support this. While lawsuits have been filed against physicians who use their own sperm to impregnate patients,[56] noted scholar of reproductive tort law Dov Fox states that “[e]very lawsuit to date by former patients and their children [on these grounds] has been unsuccessful.”[57] Doctors who spread COVID misinformation are unlikely to be found liable in tort law,[58] either for procedural reasons,[59] because it would be difficult to prove a causal connection between their speech and any patient injury,[60] or because of First Amendment protections.[61] Physicians who refuse to treat unvaccinated patients are protected from suit by the tort law principle that physicians have no duty to treat any particular patient and may choose whether to enter into a doctor–patient relationship,[62] absent statutory requirements like the Emergency Medical Treatment and Labor Act (EMTALA).[63] Various statutes prohibit discrimination against patients on the basis of protected classes like race, religion, and gender[64] but either leave enforcement authority only in the hands of government officials and offer no individual remedy[65] or impose significant procedural and pleading barriers for those seeking compensation.[66] Physicians who coerce or pressure birthing women against their consent are occasionally sued,[67] but more often than not attorneys are simply unwilling to take these cases because damages are limited.[68] Nonconsensual pelvic examinations clearly violate ethical principles relating to patients’ bodily autonomy, but because they are within the current standard of medical practice, patients have limited opportunity for tort recovery; this is why the trend has been towards legislative intervention rather than litigation.[69] When ethics abuses arise in the context of research, rather than clinical treatment, injured participants have no avenue of recovery.[70] And when patients are sexually abused by their physicians, the consequences tend to be criminal rather than civil; or alternatively, civil actions may be taken against organizations that were aware of the abuse rather than the physicians themselves.[71]

There are many reasons why patient claims for compensation against physicians who have breached ethical duties are unsuccessful. For example, this may be because plaintiffs are seeking recovery for dignitary or emotional harms rather than physical injuries (as in cases of discrimination). Tort law, however, permits recovery for nonphysical harms only in narrow sets of circumstances.[72] In cases where physical injuries do arise, attorneys operating on a contingency fee basis are unlikely to accept cases unless those injuries are significant enough to merit substantial damages awards.[73] In other cases (including many involving reproduction or end of life care), there may simply be no common law cause of action that recognizes the harm as compensable.[74] And while a claim of breach of fiduciary duty seems as if it might capture many such ethical violations, patients are rarely successful in bringing such cases against their physicians.[75]

It is, of course, true that some ethics violations may fall within the scope of traditional common law causes of action like medical malpractice or breach of confidentiality. However, while such claims may be grounded in allegations that the defendant violated ethical norms, courts are typically reluctant to acknowledge the legal relevance of an ethical breach.[76] Common law recognizes these traditional causes of action in a wide variety of contexts (not exclusively medical contexts), and their prima facie elements can be proven without reference to any independent ethical standards applicable in the professional sphere.[77] For example, while a doctor who publicly discloses sensitive information about a patient may be liable for breach of confidentiality, and may also have violated professional ethical norms, the injured patient would have a valid tort claim even if no such professional norms existed. In medical malpractice cases involving physical injury, plaintiffs are granted relief because they are able to demonstrate violations of the standard of care regarding diagnosis, choice of treatment, or execution of treatment. If one of those violations has occurred, the fact that it also amounted to an ethical breach is viewed as legally irrelevant. Thus, patients who suffer injury as a result of an ethical violation may only recover if the circumstances of the injury also fall within the narrow requirements of a common law tort claim. Otherwise, tort law may provide little or no remedy, even when clearly defined principles of medical ethics deem the conduct a violation of the ethical standards of professional practice.

A. Traditional Forms of Recovery for Patient Harm

In this section, I introduce four traditional mechanisms by which patients who are harmed in the health care context can seek recovery. In the next section, I identify the various ways in which courts approach cases where plaintiffs explicitly cite ethical violations as a basis for recovery. Together, these discussions suggest that courts are extremely reluctant to accept principles of medical ethics as an independent basis for liability and patient compensation.

1. Medical Malpractice

Medical malpractice law is the primary source of recourse for patients who experience injuries in connection with medical treatment. By bringing a medical malpractice action, a patient can seek compensation for injuries caused by a health care provider’s failure to exercise the degree of care expected under the circumstances.[78] Generally, the standard of care in medical malpractice cases is defined by professional custom and established by way of expert testimony.[79] By defining the standard of care with reference to the “actual pattern of medical practice,”[80] as opposed to idealized standards[81] or practices confirmed by clinical research to be most effective,[82] medical malpractice law gives great deference to the judgment of the medical community.[83]

In medical malpractice actions, the standard of care for physicians is uniform and does not vary by geographic location, experience, or degree of skill.[84] Given that medical training is nationally standardized, most states require physicians to possess “such medical knowledge as is commonly possessed or reasonably available to minimally competent physicians in the same specialty or general field of practice throughout the United States.”[85] And while “knowledge” is not limited to particular types of knowledge—for example, scholarly, technical, experiential, or social—the underlying bases of most successful medical malpractice actions against physicians are errors in diagnosis, choice of treatment, or execution of treatment.[86] If there were a simplified description of these tort claims, it would be that they are about medical errors resulting from deficiencies in technical knowledge, clinical decision-making, or skill.

Over time, it became clear that one important part of the treatment process is the disclosure of risks and benefits to patients so that they are able to make informed decisions about their medical care. Patients have historically been able to bring claims for battery in circumstances where a medical treatment was provided without their consent,[87] but this action was not available to patients who consented to treatment but lacked key information that would help them make an informed decision.[88] The new informed consent cause of action stepped in to fill this gap.[89]

In retrospect, the informed consent cause of action might be viewed as an ethics-based tort remedy—that is, a legal cause of action grounded in a breach of professional ethics (rather than breaches of professional standards of diagnosis, treatment, or skill). Today, the duty to secure a patient’s informed consent is perhaps the most well-recognized ethical and legal duty in the medical profession.[90]

An informed consent tort claim rests on the principle that physicians have a duty to disclose relevant medical information that would be material to a patient’s decision about whether to proceed with a particular medical treatment. Typically, this requires disclosure of information about the patient’s diagnosis and prognosis, the risks and benefits of the proposed treatment, and the risks and benefits of alternatives to that treatment (including no treatment at all).[91] To secure a remedy under the theory of informed consent, patients must prove that they suffered physical harm as a result of the breached disclosure duty.[92]

Although an informed consent violation could be viewed simply as a claim for medical malpractice—a breach of the medical standard of care, specifically with respect to disclosure and communication with patients—courts chose to view informed consent claims as distinct from traditional medical malpractice claims.[93] As a procedural result, lawsuits brought by patients against physicians include separate causes of action for malpractice and informed consent.[94]

The most surprising fact about the tort doctrine of informed consent is that, unlike medical malpractice law, it was not historically grounded in the customary practices of the profession, nor was it grounded in established principles of medical ethics. Until the 1950s, neither American law nor medical practice required physicians to make any disclosures when securing a patient’s consent to treatment.[95] Leading historians of medicine and medical ethics conclude that prior to this time, as a matter of medical custom, physicians did not share information with patients in order to secure their informed consent—in fact, they frequently withheld it.[96] According to Jay Katz’s foundational history, The Silent World of Doctor and Patient, “disclosure and consent, except in the most rudimentary fashion, [were] obligations alien to medical thinking and practice.”[97] In short, prior to the 1950s, informed consent was not a part of medical custom, and there was no common law precedent for it.

And yet, within a matter of decades, the duty of physicians to make disclosures to patients as part of securing their informed consent became well established in both law and medicine.[98] What drove this turn of events? There are various reasons, such as the recognition of consent as an essential element of medical research in the post-World War II Nuremberg trials,[99] development of the patient rights movement,[100] the growth and standardization of medical ethics,[101] and the growing recognition of autonomy as a principle of patient decision-making.[102] But from a legal perspective, the law of informed consent developed because judges made it so.[103] Without any clear common law precedent, judges around the country uniformly accepted this new legal duty, which arose hand in hand with its recognition as an ethical duty in medical practice.[104] Courts recognized a gap in patient protection and used tort law to fill that gap.[105]

3. Confidentiality

Physicians unquestionably have an ethical duty to maintain their patients’ confidentiality.[106] However, leading scholars of tort law and medical law conclude that there is no uniform legal approach to recognizing the duty of confidentiality and providing a remedy for its breach (whether in the context of the doctor–patient relationship or otherwise).[107] Only some jurisdictions recognize an independent tort cause of action for breach of confidentiality by health care providers.[108] Others view confidentiality as one of the core duties owed by fiduciaries and allow injured parties to seek recovery by bringing a claim on those grounds.[109] Some consider confidentiality to be part of the implied contract between doctor and patient and may grant recovery based on contract principles.[110] A few accept claims for breach of doctor–patient confidentiality within the context of a common law or statutory malpractice action.[111] Others completely reject a common law cause of action for breach of confidence between a doctor and patient.[112]

Because there is no uniformly accepted common law cause of action for breach of confidence, courts that award recovery for breach of doctor–patient confidentiality most commonly rely on public policy arguments to justify their holdings. One court that adopted a tort cause of action for breach of doctor–patient confidentiality noted that:

[I]n the absence of legislation, courts have found the basis for a right of action for breach of the physician–patient confidential relationship in four main sources of public policy: state physician licensing statutes, evidentiary rules and privileged communication statutes which prohibit a physician from testifying in judicial proceedings, common law principles of trust, and the Hippocratic oath and principles of medical ethics.[113]

Indeed, several jurisdictions, in explaining the public policy supporting the physician’s duty of confidentiality, explicitly cite the ethical commitments of the medical profession, including the Hippocratic Oath and the AMA’s Principles of Medical Ethics.[114] That said, there is no single, universally recognized tort cause of action for breach of confidentiality, either in the medical context or beyond.

4. Fiduciary Duty

A claim for breach of fiduciary duty was historically an action in equity, rather than tort.[115] However, in the context of professional practice by attorneys and physicians, courts treat many fiduciary duty claims simply as “a species of malpractice.”[116] While there are important procedural and substantive differences between claims for breach of fiduciary duty grounded in equity versus negligence,[117] they will not be explored here.

Fiduciary relationships are ones that depend on trust between the parties, where the party in a stronger position—with greater power, knowledge, and expertise—owes a duty of loyalty and care to those they serve.[118] The duty of loyalty requires acting for the benefit of the beneficiary, without influence by personal motives or self-interest.[119] That includes a duty of candor, requiring complete honesty towards the beneficiary, and full disclosure of information needed for the beneficiary to make appropriate decisions.[120] It also includes a duty of confidentiality, which may continue even after the fiduciary relationship has ended.[121] The fiduciary’s duty of care is similar to the standard of care in medicine and is dependent on context.[122] Each of these duties has distinctly moral components.[123]

Academic commentators commonly describe the physician–patient relationship as a fiduciary relationship[124] grounded in the ethical obligations of the medical profession.[125] Courts, too, frequently use fiduciary language in describing the physician–patient relationship.[126] Professor Maxwell Mehlman, for example, cites dozens and dozens of cases to reinforce the fact that “numerous courts . . . acknowledge the fiduciary nature of the patient–physician relationship.”[127] He also notes that common law in only three states has explicitly rejected this categorization.[128]

That said, while courts may describe the physician–patient relationship as fiduciary, it is much less common for them to actually recognize breach of fiduciary duty as a viable cause of action when patients sue their physicians. Numerous legal scholars have concluded that, in practice, courts very rarely accept fiduciary duty claims in the medical context.[129] This may be in part due to the fact that even if physicians owe fiduciary duties to patients, the scope of those duties as a legal matter is poorly defined.[130] While Professor Mehlman challenges the sources that “cast doubt on or reject outright the fiduciary nature of the patient–physician relationship,”[131] he does seem to recognize a difference between judicial acknowledgment of a fiduciary relationship and courts’ willingness to grant recovery on the basis of this relationship. For example, he points out that that courts in ten states, “while acknowledging or at least not rejecting the fiduciary nature of the relationship, have held that a patient has no cause of action for breach of a physician’s fiduciary duties that is distinct from an action for medical malpractice.”[132] In Neade v. Portes, for example, the Supreme Court of Illinois found that while “Illinois courts have recognized a fiduciary relationship between a physician and his patient, [they] have never recognized a cause of action for breach of fiduciary duty against a physician” and indeed have rejected breach of fiduciary duty claims brought against attorneys.[133]

There are two reasons why courts are hesitant to grant recovery for breach of a physician’s fiduciary duty. The most common explanation judges offer for rejecting fiduciary duty claims in the context of medical practice is that such claims are duplicative of medical malpractice claims.[134] Many courts conclude[135] that claims for malpractice and claims for breach of fiduciary duty are “based on the same operative facts and result in the same injury to the plaintiff,”[136] and that in such cases, the malpractice claim provides a sufficient remedy.[137] Only in rare situations where the underlying facts of a medical malpractice action and a fiduciary duty action are obviously distinguishable will courts permit a breach of fiduciary duty claim to proceed separately.[138] Many academic commentators have rightly criticized courts’ conflation of the two causes of action, pointing to important differences with respect to pleadings, burdens of proof, expert testimony, defenses, and remedies.[139] According to Professor Mehlman, “physicians technically can breach their fiduciary duty even if the care that they provided meets the standard of care for negligence.”[140]

A second reason why courts might be resistant to viewing a physician’s breach as a breach of fiduciary duty rather than a medical duty of care is skepticism that the plaintiff’s motivation in making such a pleading is simply to avoid the onerous standards many states impose on medical malpractice claims.[141] In particular, malpractice claims tend to have shorter statutes of limitations, so patients whose injuries could be interpreted as being caused by a breach of fiduciary duty have a strategic reason for bringing that claim instead.[142]

B. Tort Claims Based on Ethical Violations

While a comprehensive survey of the caselaw is beyond the scope of this Article, this section provides an overview of three distinct approaches that courts tend to take when addressing legal claims that are explicitly grounded in breaches of medical ethics. These caselaw examples are intended to be representative, but by no means exhaustive.[143]

In most cases where patients specifically allege that they are injured as a result of a health care professional’s deviation from principles of medical ethics—rather than deviations from technical knowledge, professional decision-making, or skill—courts deny injured plaintiffs a remedy under traditional theories of medical malpractice. Indeed, courts often go out of their way to explain why medical malpractice is not an appropriate framing for claims based on ethical violations. Moreover, patients who seek compensation for ethical violations by way of other types of tort actions—for battery, informed consent, breach of fiduciary duty, negligent misrepresentation, breach of confidentiality, fraud, etc.—are often denied remedies as well.

As a general matter, courts uniformly reject the idea that ethical standards establish a legal duty of care or that breach of professional ethical duties is dispositive on the issue of legal breach.[144] However, some courts recognize that professional ethical standards may have some relevance in litigation–either as persuasive evidence regarding the professional standard of care or as part of the policy analysis regarding whether recovery should be granted.[145] Other courts, in contrast, reject the idea that ethical standards could be relevant in any way to the disposition of legal claims.[146] Taken as a whole, these cases show a gap in tort law’s ability to remedy harms resulting from unethical conduct by physicians and other health care providers.

Some patient-plaintiffs in tort suits have argued that health care providers have a duty to comply with the ethical standards of the profession, and therefore that a breach of these ethical standards is an independent basis for tort liability.[147] As a procedural matter, the way plaintiffs frame these claims varies. Often, they are framed by reference to traditional medical malpractice doctrine, arguing that the ethical standards of the medical profession establish duties and set standards of care that, if breached, can subject a defendant to tort liability.[148] In other cases, plaintiffs argue that a provider’s breach of a specific ethical mandate is grounds for a more focused type of claim—for example, based on contract, fiduciary duty, or confidentiality.[149] In nearly all such cases—in contexts as varied as sexual assault, consensual sexual relations, confidentiality, informed consent, and nondisclosure of test results—courts reject the argument that professional ethical commitments establish prima facie legal duties.[150] Below are several examples.

In a Texas case, a series of state courts denied recovery to a plaintiff who alleged that she was sexually assaulted by her psychiatrist.[151] Rather than bringing a traditional negligence, malpractice, or battery claim, the patient sued her psychiatrist on the grounds that he had breached an “implied warranty of compliance of ethical commandments of the psychiatric calling.”[152] At trial, the jury concluded that the psychiatrist had breached an “implied[] warrant[y] [that] he would fully comply with the ethical commandments of his calling” and that this breach caused the patient’s injury.[153] However, the trial court dismissed these jury findings as immaterial.[154] The appeals court affirmed, holding that although a psychiatric practitioner “impliedly contracts that he possesses the reasonable degree of skill and learning possessed by others of his profession, and that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed,” there is no legal precedent “recognizing a cause of action for breach of an implied warranty of ethical commandments.”[155] The Supreme Court of Texas subsequently affirmed this decision, noting that there were no public policy justifications for accepting an implied warranty theory in such a case.[156] The court noted that the plaintiff could potentially recover under medical malpractice or battery,[157] but because the plaintiff had not brought such claims, she was denied a remedy.[158]

In a similar Illinois case, a patient alleged that she was sexually assaulted by a physician at a federal health facility during a gynecological exam.[159] She brought suit in state court against the physician and the facilities within which he was practicing.[160] In her negligence action under the Federal Tort Claims Act (FTCA), she argued that the defendants, the United States and Resurrection Health Care Corporation, had breached a duty to comply with the AMA’s Code of Medical Ethics (the AMA Code).[161] The U.S. District Court for the Northern District of Illinois, applying Illinois tort law, dismissed the claim. It concluded that the there was no legal authority establishing a duty to comply with the AMA Code and no legal reasoning or caselaw establishing that a hospital’s “duty to its patients can be derived from the AMA’s medical ethics opinions.”[162] As the federal court was applying Illinois law, it relied on a state appellate opinion holding that “a violation of the AMA’s medical ethics does not in itself amount to a breach of the legal standard of care.”[163] The plaintiff’s other claims—for medical malpractice and negligent supervision—were also dismissed,[164] leaving her with no remedy for the sexual assault.[165]

Courts in contexts outside of physician sexual assault have likewise rejected the ideas that providers have a duty to comply with the standards of medical ethics and that ethical violations alone might subject providers to tort liability.[166]

In a South Carolina case, a plaintiff sued a pharmacist for falsely telling third parties that the plaintiff was being treated for a sexually transmitted disease.[167] Although there was no common law duty of confidentiality on the part of pharmacists in the state, the plaintiff argued that such a duty was established by the state’s licensing statute and by the Code of Ethics of the American Pharmaceutical Association (the APA Code).[168] The Supreme Court of South Carolina concluded that while the APA Code “may be a potential source of guidance on a pharmacist’s duty of care generally, . . . it does not create for pharmacists a statutory [or common law] duty of confidentiality.”[169]

In an Arizona action for professional negligence, a patient sued a radiologist who failed to report x-ray abnormalities directly to the patient.[170] The appellate court relied on an AMA Ethical Opinion (among other sources) to conclude that the radiologist had a duty to report,[171] but the Supreme Court of Arizona rejected the appellate court’s conclusion.[172] It “decline[d] to find a duty to report . . . based upon the medical profession’s ethical standards” on the grounds that doing so would “conflate[] the existence of a duty with the standard of care.”[173] According to the court, the radiologist in this case had a duty to act as a reasonably prudent health care provider, but the exact contours of that duty depended on contextual factors and could not be established by rules of ethical conduct.[174]

In an unreported Missouri case, the estate of a patient sued her physician’s wife (also a physician) for negligence, claiming that the wife’s failure to report her husband’s brain damage and lack of professional competence caused the patient’s death.[175] The plaintiff cited Principle II of the AMA’s Principles of Medical Ethics to argue that the defendant “was under a duty as a physician to report his impairment to the Missouri Board of Healing Arts and to his employer.”[176] However, the court dismissed the patient’s claim, holding that the physician’s wife had no professional duty to report her husband’s condition and rejecting the argument that this ethical principle established a legally binding duty of care.[177]

Numerous other state courts have likewise opined that the ethical standards of the medical profession are not binding, do not establish legal duties, and cannot form an independent basis for tort liability.[178] Only when there is already legal precedent to support a plaintiff’s claims will courts cite ethics opinions and guidelines as providing additional support for those claims.[179] This Article has identified only one case holding that expert testimony regarding professional ethics can be the basis for a cause of action not otherwise established by common law; however, that decision was later overruled.[180]

These holdings—that professional ethical standards are not, on their own, a basis for liability—are consistent with well-established precedent relating to tort claims for legal malpractice. When clients bring malpractice suits against their attorneys on the basis of a violation of the rules of professional responsibility, courts consistently conclude that such violations on their own are not a basis for civil liability or a tort remedy.[181] Indeed, some of the medical malpractice cases cited above have relied on precedent from legal malpractice cases in rejecting any legal conclusions based on professional ethics opinions.[182]

2. Ethical Standards as Potentially Relevant to the Standard of Care

While principles of medical ethics do not establish legally binding duties that trigger tort liability, they may be one piece of relevant evidence relied upon by experts testifying as to the standard of care in malpractice cases. This, again, is consistent with longstanding jurisprudence in legal malpractice cases, which hold that professional ethics standards may be relevant evidence but are not dispositive as to the standard of care.[183] This is also consistent with the trend in the confidentiality cases cited in section III.A.3, where courts conclude that public policy considerations—including the existence of professional ethical commitments—may support the imposition of liability.[184]

In a substantial number of cases where plaintiffs introduce evidence about the ethical standards of the profession when arguing about the standard of care or breach of duty, courts recognize that these standards may have some legal relevance.[185] However, courts fall short of concluding that ethical standards establish a duty or define the standard of care, or that breach of an ethical standard is dispositive as to breach of duty. While the factual circumstances of these cases vary, courts across the country use similar language to convey this idea. The Arizona Supreme Court, for example, concluded that rules of medical ethics “may illuminate the standard of care” but do not establish a duty of care.[186] The Supreme Court of South Carolina held that a professional association’s code of ethics “may be a potential source of guidance on . . . duty of care generally” but “does not create . . . [a] duty.”[187] A Georgia court of appeals has concluded that although an “alleged violation of a professional ethical standard, ‘standing alone, cannot serve as a legal basis for a [professional] malpractice action,’”[188] it may constitute relevant evidence as to the standard of care in a malpractice case.[189]

Although many courts support the general principle that ethics standards may be one piece of relevant evidence in determining whether a defendant breached the standard of care, there are fewer cases where courts have actually applied this principle to give serious consideration to ethics in a malpractice case.[190] In North Carolina, appellate courts have twice upheld lower court decisions to accept expert testimony about ethical standards in malpractice cases against mental health practitioners.[191] In one of these cases, the court explained that although “breaches of professional ethics are not actionable in a malpractice suit when such standards differ from the reasonable standard of care imposed by tort law,” it is not error to permit expert witnesses to present their opinions regarding professional ethics if they testify that “the accepted standards of care are coterminous with the relevant standards of professional ethics.”[192]

The only context in which a substantial number of courts have awarded tort recovery based in part on the breach of an ethical standard is in the confidentiality cases cited in section III.A.3. In several jurisdictions, court decisions about whether to allow recovery for breach of doctor–patient confidentiality have been based primarily on policy considerations, rather than on existing precedent.[193] Among those policy considerations is the fact that physicians are bound by ethical standards (including confidentiality) and that widespread public awareness of such standards supports recognizing a cause of action, whether grounded in theories of tort or implied contract.[194] Several courts have explicitly cited the Hippocratic Oath and the AMA’s Principles of Medical Ethics as grounds for the ethical principle of physician–patient confidentiality and cited them approvingly in discussions of policy justifications for recognizing a cause of action.[195]

3. Ethical Standards as Irrelevant to the Standard of Care

However, not all courts accept principles of medical ethics as being relevant, even tangentially, to the professional standard of care. A few courts have rejected plaintiffs’ introduction of evidence regarding medical ethics in malpractice cases, concluding that such evidence is irrelevant in determining the standard of care or assessing whether that standard of care was breached.

Perhaps the most well-known case is Neade v. Portes, in which the estate of a patient who died of a heart attack brought claims for medical negligence and breach of fiduciary duty against the patient’s physician.[196] According to the plaintiff, the physician did not recommend or authorize an angiogram that could have detected coronary artery disease, despite the fact that another physician had made that recommendation.[197] The plaintiff brought a malpractice claim for failure to order the angiogram and argued that the reason the defendant physician failed to authorize the angiogram was because he was incentivized by the health maintenance organization (HMO) to limit outside diagnostic testing.[198] The plaintiff also brought a breach of fiduciary duty claim for failure to disclose the HMO’s financial incentives, on the grounds that such disclosure was required as a matter of professional ethics.[199]

With respect to the medical malpractice claim, both the trial and the appellate courts held that the physician’s financial motivations were not relevant to the question of whether or not he breached the professional standard of care.[200] Despite expert testimony that denying care based on financial incentives violated ethical norms,[201] both courts struck the allegations regarding financial incentives.[202] The Supreme Court of Illinois upheld this decision but agreed with the appellate court that if the defendant were to testify at trial, such evidence could be introduced (at the discretion of the court) as relevant to the defendant’s credibility.[203]

With respect to the fiduciary duty claim, the plaintiff introduced expert testimony that “both the applicable standard of care and ethical considerations obligate a doctor to disclose his financial interest in withholding care” so that the patient can make an informed decision.[204] In particular, the plaintiff cited an ethics opinion by the AMA’s Council on Ethical and Judicial Affairs.[205] However, both the trial court[206] and the Supreme Court of Illinois dismissed the fiduciary duty claim.[207] The courts held that the fiduciary duty claim was duplicative of the medical malpractice claim,[208] because the operative facts of both causes of action were identical, with only one exception—the fiduciary duty claim introduced evidence about the HMO incentive fund.[209] Because of the similarities between the allegations in both counts, the court held that it was unnecessary to “recognize a new cause of action for breach of fiduciary duty when a traditional medical negligence claim sufficiently addresses the same alleged misconduct.”[210]

In an Oregon case of medical malpractice for injuries resulting from negligence during surgery, the Supreme Court of Oregon similarly concluded that the physician’s motivations—even if unethical—were irrelevant to the question of whether he breached the standard of care.[211] The plaintiff had moved to amend the malpractice complaint to include a claim of negligence based on the fact that her doctor continued treating her even after they began having a sexual relationship.[212] The lower courts denied the plaintiff’s motion to amend and granted the defendant’s motion to exclude any evidence about the sexual relationship between the parties.[213] The plaintiff had argued that evidence of the sexual relationship was relevant to her medical malpractice claim because the relationship may have “clouded” his judgment and led to a violation of his ethical duty to make treatment decisions in an objective manner.[214] The Supreme Court of Oregon rejected this argument, holding that the physician’s underlying state of mind is irrelevant in assessing whether he complied with the objective standard of care for medical treatment.[215] In other words, if a physician’s “actual treatment of a patient reflects the appropriate degree of care,” they cannot be found liable for negligence even if they have violated their ethical duty to maintain an objective state of mind.[216]

A pre-EMTALA Arizona case involving a physician’s duty to provide emergency treatment likewise rejected ethical standards as irrelevant to a common law cause of action for malpractice.[217] In a claim alleging that the defendant physician unlawfully refused to treat a patient with acute hyperglycemia, the court noted that the hospital’s medical staff bylaws expressly incorporated the AMA’s Principles of Medical Ethics.[218] While the court ultimately concluded that the physician was “obligated by contract” to treat the patient, it emphasized that its “holding, as such, is not in any sense based upon Section 5 of the Code of Ethics . . . [and] would be the same even without the incorporation of the Code of Ethics into the bylaws.”[219] In effect, the court applied traditional contract principles to resolve the claim and expressly disavowed the relevance of the profession’s ethical principles—even though those principles were incorporated into the medical staff bylaws that ostensibly were the basis of the contractual relationship.[220]

In all of these cases, when plaintiffs sought to introduce evidence about professional ethics to support their claims—whether framed in terms of fiduciary duty, traditional negligence, or medical malpractice—courts found that evidence inadmissible (and in two cases, denied recovery). In other words, the courts held that the providers’ alleged breach of ethical duty was legally without relevance in a suit for recovery under common law.

IV. What Might a Cause of Action for Ethical Malpractice Look Like?

As demonstrated above, patients seeking tort compensation for a physician’s breach of ethical standards of care are limited in their ability to recover. Courts uniformly deny the existence of an independent duty to comply with the ethical standards of the medical profession, and some even deny that these ethical standards might be relevant to a jury’s determination of standard of care and breach.

When courts decline to recognize duties of care grounded in medical ethics, their reasoning is—like much of common law—self-referential. Courts hold that principles of medical ethics do not establish duties or define standards of care because these principles are not legally binding. In other words, medical ethics have no legal force because they have no legal force. Ethics opinions issued by professional medical associations have not been passed by legislatures, adopted by administrative agencies,[221] or embedded in the common law; therefore, there is no reason for judges or juries to defer to them.

And yet, it is important to recognize that the development of common law is an evolutionary process. The common law is not static; it builds on a foundation of prior precedential and persuasive judicial opinions. Moreover, common law also develops based on policy considerations. Many of the foundational cases in tort law are grounded not in precedent but in emerging judicial views on novel issues of public policy.[222] The informed consent cause of action, described in section III.A.2, is a classic example where courts recognized a new legal duty for physicians even in the absence of any relevant professional custom. Another example is in the context of doctor–patient confidentiality, described in section III.A.3, where some courts rely on public policy factors—including the ethical commitments of the medical profession—to award recovery for a harm that had not been previously recognized under common law.

This history might serve as a model for the development of a cause of action for “ethical malpractice.” Certainly, there is stronger theoretical support for ethics-based malpractice claims than there was for tort claims of informed consent. At least some scholars argue that attorneys and judges created the duty of informed consent out of whole cloth, without any meaningful support or reflection in actual medical practice.[223] Today, however, there are many well-accepted ethical dictates in medicine that are part of medical custom[224]—like the duty of doctor–patient confidentiality—giving even stronger support to the idea that there are policy reasons for judges to acknowledge duties and standards of care that had not previously been recognized in law.

Although principles of medical ethics may have no legal force on their own, there is nothing to stop judges from integrating these principles into the common law as a matter of policy. Given that backdrop, it is difficult to understand why there is still so little judicial recognition that physicians owe patients a duty to comply not only with the technical standards of professional practice, but also its ethical standards.

This part explores several paths that tort law might take in addressing claims for compensation based on breaches of professional ethics.

A. The Traditional Medical Malpractice Model

The approach that would be most in line with current practice would recognize that ethical norms may inform the standard of care expected of a reasonable physician or health care professional. It would not establish as a matter of law that all health care professionals have a duty to comply with ethical norms. However, it would acknowledge that the scope of the general duty to exercise reasonable care may, depending on the factual circumstances, include duties to comply with specific ethical standards.[225] Consistent with traditional principles of tort law, the extent to which these ethical standards inform the professional standard of care in a given case would be determined by the judge, and whether those standards were breached would be determined by a jury.[226]

Thus, a patient claiming injury as a result of an ethical violation could bring a traditional malpractice claim. The prima facie case would be satisfied if the patient proved that the defendant owed them a duty to exercise reasonable care in complying with the customary standard of care of their profession, that such duty was breached, and that the breach was the factual and proximate cause of the patient’s injury.[227] The details of the standard of care and breach would, as usual, be established more concretely through expert testimony.[228] Experts for both the plaintiff and defendant could testify as to whether the standard of care in similar circumstances includes compliance with any specific ethical guidelines. If the jury concluded that the defendant’s conduct violated the standard of care of a reasonable medical practitioner—taking into account customary standards of ethical practice—and that this breach caused physical injury to the patient, the patient could recover for medical malpractice.

The difficulty with this model, however, is that it would not allow patients to recover for ethical violations that result in solely dignitary harms—such as, for example, the very real dignitary harms that result from discrimination in the context of medical treatment. Medical malpractice has always been a tool for compensating for physical injuries, rather than dignitary or emotional harms, and it seems difficult to imagine that courts would stray from this traditional model.[229]

An alternative approach would recognize that, as a matter of law, a health care professional’s duty of care includes a duty to comply with the profession’s ethical norms. The scope of this duty in any given circumstance would, as above, be determined through expert testimony, but this approach would require a plaintiff to specifically plead a violation of the duty to comply with ethical norms, rather than a violation of the general duty of care.

This approach would mirror the path that the tort of informed consent has taken. Although the duty to secure a patient’s informed consent is within the physician’s general duty of reasonable care, it is unique enough that courts have determined it to be a separate cause of action.[230] Under this approach, deviation from the customary practices of reasonable physicians with respect to technical skill, medical knowledge, or diagnostic ability would fall within the scope of a medical malpractice claim. Deviation from the customary practices of reasonable physicians with respect to disclosure duties would fall within the scope of an informed consent claim. And deviation from the customary practices of reasonable physicians with respect to medical ethics would fall within the scope of an “ethical malpractice” claim.

Much like informed consent claims, an ethical malpractice claim could be brought either independently or as an additional cause of action alongside a traditional medical malpractice claim. The evidentiary approach would be the same as in the medical malpractice model—the judge would determine the scope and content of the physician’s ethical duty and the jury would assess breach and causation—but the existence of a general duty to comply with professional ethics would be taken for granted as a matter of law.[231]

If tracking the informed consent model, a plaintiff bringing an ethical malpractice claim would be required to prove that the ethical breach resulted in a physical injury. As discussed above, although the traditional informed consent cause of action has gone on a separate path than traditional malpractice, it still requires the patient to demonstrate that a physical injury occurred and that that injury was both factually and legally caused by the ethical breach.[232] If a cause of action for ethical malpractice were to take this approach, it would truly be akin to the informed consent model and would have the same limitations—namely, the requirement of physical injury.

That said, it is possible that a new cause of action for ethical malpractice could deviate further from the traditional malpractice and informed consent models by redefining the nature of the injury. Both malpractice claims and informed consent claims require plaintiffs to prove physical injury, but one might consider a regime where violation of patient-protective ethical norms would be viewed as a compensable dignitary harm even in the absence of physical injury.[233] Indeed, many contemporary scholars have challenged the traditional approach, arguing that informed consent violations should be actionable for dignitary harms alone.[234]

Just as claims for negligent infliction of emotional distress (NIED) and breach of confidentiality do not always require proof of physical harm,[235] ethical malpractice could likewise be viewed as a dignitary tort. Proof of breach of ethical duty alone would be the basis of an independent cause of action, with the presumption that the breach caused harm to the patient and that such harm—even if intangible—is compensable.

In light of tort law’s historical resistance to recognizing purely dignitary torts, however, judicial acceptance of such a model seems somewhat unlikely. The limited contexts in which tort law has recognized dignitary harms as a compensable injury are few and far between, and the fact that courts in informed consent cases have insisted on retaining the physical injury requirement suggests that they would be reluctant to abandon it in another malpractice-adjacent action.[236]

That said, the more examples we see of ethical breaches that result in purely dignitary harms (or that result in limited physical harm), the greater the policy justifications for expanding law’s recognition of compensable injuries. Consider, for example, some of the examples introduced in the Introduction—such as discrimination against patients based on personal characteristics; nonconsensual pelvic examination of unconscious women; violation of sexual boundaries; breaches of confidentiality; and reproductive harms.[237] A cause of action for ethical malpractice that recognized dignitary harms as legally compensable would provide a remedy for all these injuries, even those that don’t fit within the boundaries of traditional causes of action.

C. Recognizing Ethical Malpractice Without Doctrinal Consistency: The Confidentiality Model

As noted in section III.A.3, courts have taken a variety of approaches when patients bring suit for breach of doctor–patient confidentiality. Only some jurisdictions recognize this as a tort in its own right. However, even those jurisdictions that decline to recognize an independent cause of action for breach of confidentiality find creative ways to allow patients to recover—whether under contract law, fiduciary duty doctrine, or some other legal remedy. When the injury a patient suffers results from an ethical violation, such an approach may be more palatable to courts than developing an independent cause of action or integrating ethical principles into the standard of care in traditional malpractice cases. The flaw with such an approach, however, is its lack of doctrinal consistency. One would imagine that an ethical duty as well established as the duty of physicians to maintain their patients’ confidentiality would have an analogous duty in the legal world that is recognized uniformly across jurisdictions. And yet, that is not the case. If part of the goal of recognizing ethical breaches as legal violations is to emphasize the centrality of professional ethics to physicians’ legal duties to patients, then a doctrinally scattered approach would not achieve this goal as effectively as the approaches set out in sections IV.A or IV.B.

V. Challenges to Ethical Malpractice as an Independent Tort

Although, as noted above, there are various avenues by which tort law might seek to respond to plaintiffs’ claims of ethical breaches by health care professionals, courts have been willing to do so only rarely. The explanation courts offer for their refusal is that in tort litigation, principles of medical ethics have no legal force. But as noted in Part IV above, the historical development of tort law has successfully integrated ethical concepts like the duty to secure informed consent and the duty to maintain confidentiality; thus, tort law’s role in advancing public policy might support recognition of ethical duties as legal duties. This part examines the most likely criticisms and challenges to legal recognition of professional ethical obligations as a basis for tort recovery and assesses their merits.

A. Different Purposes: Duties to the Profession, Duties to the Public

Drawing on caselaw and literature from legal malpractice is particularly instructive in considering the merits of tort liability for ethical violations. In the context of legal malpractice, courts are reluctant to impose tort liability on the basis of a breach of the American Bar Association’s Model Rules of Professional Responsibility. According to one author, some courts “either refuse to allow any explicit mention of the codes to establish the standard of care or else burden their use with weighty restrictions such that their evidentiary value is largely nullified.”[238] As a preliminary matter, the introductory scope section of the Model Rules states:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. . . . Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.[239]

Similarly, most state rules of professional responsibility include disclaimers as to their use in civil litigation, and courts have relied on these statements to oppose their use.[240] Courts have interpreted statements like these as meaning that the rules are aimed at establishing obligations to the profession, the legal system, and to the public at large rather than to individual client-plaintiffs, and therefore cannot form the basis of malpractice liability.[241] Similar concerns might be raised in the context of medical malpractice and violations of professional standards of medical ethics.

Although these arguments are well accepted in the context of legal malpractice, they are not immune from challenge.[242] Even if we describe professional codes as establishing duties to the profession rather than duties to individual patients or clients, it is important to consider the underlying value of the obligation to the profession. The purpose of professional self-regulation is to protect the public; this much is clear from state medical licensing statutes.[243] Of course, the profession may have more specific rules than general tort law, but if the goal of those rules is to serve and protect the public, it seems surprising that the tort system does not recognize them as well.

Relatedly, there is significant overlap between the goals of the tort system and the goals of professional self-regulation. Tort law aims at compensating victims for their losses, shifting costs from those least able to bear financial burdens to those with greater resources, and incentivizing actors to live up to the standard of care.[244] Professional self-regulation incentivizes through professional discipline. These are merely two different ways of promoting positive behavior and deterring detrimental behavior. Of course, it is possible that the behavior the profession wishes to incentivize/deter is different in kind than the behavior courts wish to incentivize/deter. But to the extent that the common law of professional malpractice is grounded in professional custom,[245] it makes sense that the standards a profession sets for itself should be relevant to the standards others should expect of it.

Indeed, in both legal and medical malpractice, courts have acknowledged this. While denying that rules of professional responsibility establish legally enforceable duties, some courts recognize that they may be relevant evidence when assessing whether someone has breached the standard of care.[246]

B. Different Purposes: Setting Minimal Standards Versus Aspirational Standards

In addition to the arguments from legal malpractice and the rules of professional responsibility, arguments about the differing purposes of tort law can also be seen in the medical world, albeit in the context of practice and not ethics. Most notably, this debate is central to questions about whether clinical practice guidelines should be accepted in court as relevant in malpractice cases.

Clinical practice guidelines (CPGs) are guidelines for health care providers offering expert guidance regarding diagnosis and treatment of various conditions.[247] They attempt to standardize the practice of medicine and improve the overall quality and outcome of health care as a result.[248] They can range from simple flow charts to complex analyses several pages in length.[249] CPGs may be created by professional medical associations, government entities, health care institutions, or insurers.[250] Depending on their intended purpose, they may vary in how they are developed.[251] On one hand, CPGs may address how to achieve superior medical outcomes; alternatively, they may address concerns about costs raised by health care payers.[252]

Since the 1990’s, scholars and policymakers have debated whether litigants should be able to rely on CPGs in medical malpractice suits.[253] Physicians argued that compliance with CPGs should be a defense to medical malpractice, while injured patients argued that noncompliance with CPGs should be grounds for a malpractice claim.[254] Initially, there was support for the use of CPGs in tort litigation.[255] Indeed, some state legislatures passed statutes permitting physician-defendants to rely on compliance with a CPG as a defense to malpractice.[256] Over time, however, most commentators reached the conclusion that there were serious problems with CPGs as a whole and therefore that using them in litigation in any conclusive fashion was a mistake.[257]

Today, many courts allow experts to rely on CPGs as learned treatises to support their testimony but not as a definitive basis for liability or as a conclusive defense.[258] In deciding whether to admit CPGs as learned treatises, courts assess the reliability and relevance of the guidelines to the case at hand.[259]

There are some similarities between CPGs and the types of professional ethical standards litigants might rely on in cases of ethical malpractice. Both provide physicians with guidance as to the expected standards of practice within the profession, whether ethical or technical. Both may be helpful to courts and juries in assessing the customary standard of practice.

But as noted above, the use of CPGs in tort litigation has been widely criticized. The biggest criticism is that CPGs (arguably, like ethics statements by professional associations) may not actually represent the standard of care, especially as different entities may craft different CPGs on the same condition.[260] Rather than representing professional custom as a matter of practice, they may instead represent an aspirational or optimal standard of care. Indeed, in the case of CPGs, evidence suggests that few health care providers actually follow these guidelines.[261] Alternatively, some CPGs may not be aimed at improving quality of care for individual patients at all; for example, CPGs created by insurers or health care institutions may instead be targeted to resource allocation goals.[262] If that is the case, it would be a mistake to rely on them as a conclusive representation of the standard of care for the purposes of malpractice liability.

Similar challenges could be raised in the ethics context—most notably the concern that these ethics standards may represent aspirational ideals, not baseline floors. Several commentators in health law and bioethics have raised similar concerns, although in reverse—namely, that the minimal standards of conduct set by tort law are not in fact the appropriate standard of care and ethical professional practice requires more.[263] This argument has been made frequently in the informed consent context, with scholars arguing that the “legalization” of informed consent has caused providers to default to the minimal legal standard, rather than actually do what is right for patients.[264]

That said, it is not inconsistent to say that tort law sets too low a standard for ethical practice while also recognizing that the ethical practices of the medical profession may be helpful guidance for tort law. Just as tort law turns to medical custom, as explained by experts, in defining the standard of care, customary ethical practice could be similarly relevant. Admittedly, there is a clear difference between admitting CPGs and ethics statements to establish the standard of care and litigants relying on them to justify why a particular course of action was or was not appropriate. But as long as these standards are not considered dispositive on their own and are treated merely as one permissible piece of evidence in connection with expert testimony that explains their relevance and that can be interrogated further, they are certainly helpful to factfinders in evaluating how a defendant’s conduct compares to the customary standard of the profession.

One concern, however—also relevant to the arguments raised in section V.A—is that the use of ethical standards in the context of civil litigation may result in reluctance on the part of professional organizations to promulgate aspirational standards. As such, incorporation of professional ethics as relevant to determinations of standard of care may backfire if professional organizations act to shield themselves from litigation.

C. Integration of Ethics into Tort Law as Self-Defeating

Section III.A.2 highlighted informed consent doctrine as one example of how tort law has already integrated one key principle of medical ethics. This analogy, however, also highlights an important concern. While the establishment of a tort cause of action for breach of informed consent duties was initially welcomed as a key step in acknowledging and supporting patients’ rights to autonomous decision-making, recent scholarship has challenged the “tort-ificiation” of informed consent law as counterproductive.[265]

In the context of informed consent to treatment, scholars of medicine, medical ethics, and even health law have argued that recognition of informed consent in American tort law has actually negatively impacted physicians’ compliance with ethical principles and, in turn, patients’ ability to make autonomous and informed health care decisions. Their primary concern is that physicians have shifted from thinking about informed consent as an iterative and context-sensitive process grounded in ethical obligations to simply seeking a patient’s signature on a standardized form drafted by hospital counsel that satisfies the minimum legal obligations.[266] Clear legal standards have, in effect, replaced independent judgment about the ethical practice of medicine. There are numerous reasons why this is viewed as problematic. One of the most commonly discussed is the fact that the legal doctrine of informed consent focuses exclusively on the type of information the physician is required to disclose but says nothing about whether this information is communicated in such a way as to facilitate the patient’s understanding.[267] In particular, literature on health literacy suggests that thinking about informed consent without considering patient comprehension makes the doctrine almost useless.[268] Physicians themselves have criticized the legally mandated requirements of informed consent as diminishing and simplifying their obligations in a way that does not serve the interests of their patients. The move towards shared decision-making as a standard of ethical medical practice seeks to remedy these problems.[269]

I share many of these commentators’ concerns about how legal doctrine has arguably weakened the way that the informed consent conversation is performed in practice. Likewise, I acknowledge that recognizing a duty to comply with specific ethical commitments or using professionally recognized standards of ethics to define the standard of care in malpractice cases risks simplifying ethical norms in a way that may be counterproductive. If the motivation behind “tort-ifying” medical ethics is to improve conditions for patients, this approach may benefit some injured patients seeking compensation, but it might not improve the overall practice of medicine. Physicians might rely on ethics statements and comply with them to the letter and use that as a defense, rather than engaging in a more nuanced and contextual analysis of what ethics and law require in a given circumstance.

It is difficult to reach a firm conclusion on whether this is a risk we are willing to take. Were we to imagine a counterfactual world in which U.S. law had not embraced the doctrine of informed consent, what would conditions be like for patients in the twenty-first century? Some might argue that medical practice would have continued to operate in a world of silence, where physicians view disclosure of information only as a means of securing the patient’s consent to a predetermined medical decision and conceal information that might cause patients to second-guess the physician’s judgment. I believe this is unlikely, given the aftermath of Nazi medical experimentation,[270] Henry Beecher’s influential 1966 article about research ethics violations,[271] the rise of the patient rights movement in the 1960s and 1970s,[272] and the 1972 disclosure of the Tuskegee syphilis experiments.[273] While many of these addressed questions of consent to medical research, rather than treatment, the underlying principles of the need for disclosure, comprehension, and consent are the same. It seems likely that both patient advocates and progressive health care providers would have moved for the integration of informed consent into medical practice with or without legal enforcement. And perhaps this self-driven integration would have led to more robust and nuanced informed consent practices, closer to the shared decision-making model.

It is certainly an open question whether health care providers would be more inclined to integrate medical ethics into their practices if prompted by professional expectations as opposed to legal obligations. That said, it’s likely that they would take a more nuanced approach to ethical decision-making when guided by professional rather than legal norms, which would benefit patients overall. The downside of this, of course, is that it would not guarantee legal recourse for patients who have been injured by ethical violations. This speaks to the dual goals of tort law in incentivizing reasonable behavior by defendants while also providing compensation for injured patients. Is it worth it to establish a system of victim compensation if the consequence of that is an arguable weakening of professional norms? This is a difficult question to answer.

D. Civil Litigation Is Not the Right Approach for Addressing Ethical Breaches

Throughout this Article, references have been made to other methods by which the breach of ethical norms by health care providers might be addressed. Some might argue that these approaches are more effective than recovery through civil litigation in addressing issues of ethical misconduct.

Most notably, professional licensure and discipline by state medical boards can be an effective mechanism for not only disciplining physician misconduct but potentially limiting or barring those physicians’ ability to practice, thereby protecting patients on a broader scale. Peer review and credentialing actions by hospital medical staff can result in similar actions. But while these actions limit the ability of physicians to practice, they do not provide any recourse for patients who have been injured.

Meaningful criminal sanctions in cases of egregious misconduct like sexual assault likewise punish problematic physicians and protect the public[274] but do not offer compensatory mechanisms for victims of criminal conduct.

Finally, statutory protections in a wide variety of contexts may prompt investigation by regulators and result in sanctions against problematic physicians. These protections, however, only rarely provide recourse to injured patients. For example, HIPAA, the key federal statute protecting privacy and confidentiality in the health care sphere, does not provide a private right of action to patients whose confidentiality was violated.[275] EMTALA, which protects against discrimination in the provision of emergency medical services, grants injured patients a right of action only against the hospital, not the physician whose refusal to treat caused the patient injury.[276] Section 1557 of Patient Protection and Affordable Care Act (PPACA), which protects against discrimination on the basis of race, color, national origin, sex, age, and disability, does not provide a right of action but leaves enforcement authority to the Department of Health and Human Services (HHS).[277] The federal Anti-Kickback Statute, which is intended to regulate financial conflicts of interest in the health care sphere, likewise offers no private right of action.[278]

There are many reasons to be concerned about ethical violations by health care providers, and many ways in which U.S. law could respond to them. Prevention, deterrence, and punishment are all valid approaches. But in so many of the cases addressed in this Article, ethical breaches result in meaningful patient harm—whether physical, dignitary, or financial. I contend that while these alternative mechanisms for addressing ethical breaches are important, they fail to serve the important compensatory role of tort law and civil litigation.

E. A Civil Cause of Action for Ethical Breaches Is Duplicative and Unnecessary

A final criticism of any proposal to grant tort recovery for physicians’ breaches of well-established principles of medical ethics is that such an approach is simply unnecessary. Just as many courts have rejected patients’ fiduciary duty claims as being duplicative of medical malpractice claims,[279] one might argue that any injury experienced as a result of an ethical breach could adequately be addressed by the medical malpractice system. Furthermore, one might argue that ethical breaches, like informed consent claims,[280] rarely stand on their own in the absence of some underlying malpractice.

However, it seems that this conclusion is not supported either by evidence or by tort theory. First, as demonstrated in section III.B, there are many cases where patients have experienced ethical breaches, pointed to principles of medical ethics as a basis for their legal claims, and have been left with no remedy, even under traditional theories of recovery. Likewise, the cases cited in the Introduction offer other examples where clear ethical breaches—like refusing to treat a patient on the basis of their race, religion, or gender—may not violate any legal duties established by common law.[281] The Introduction also identifies some examples where ethical breaches are so common as to be customary—as in the case of nonconsensual pelvic examinations—and therefore not a basis for recovery under a custom-based malpractice standard.

As a matter of tort doctrine and theory as well, I reject the idea that a claim for breach of an ethical duty is duplicative of a medical malpractice claim (or other common law claim for recovery). While in an ideal world the physician’s standard of care for malpractice purposes would include skill, knowledge, expertise, professionalism, and ethics, courts rarely view it that way.[282] Often, the injuries suffered as a result of ethical breaches are dignitary, emotional, or economic and therefore not compensable under a traditional malpractice system. Other times, an ethical breach may not actually be a breach of customary practice, in which case it would not be a basis for recovery. And while in some cases a patient could prevail on another tort theory—for example, battery in the context of unconsented-to sexual contact—there is clearly something unique about battery by a physician versus battery by another party. Most obviously, it seems that the physician’s role as a fiduciary makes the battery even more egregious; however, as noted in section III.A.4, it is rare for courts to actually hold physicians to the legal standards of fiduciaries and impose liability when they breach those standards. I would argue that physicians’ ethical duties are often tied to their fiduciary duties and challenge the idea that claims for breach of such duties by physicians are duplicative of claims for medical negligence.[283]

VI. Conclusion and Future Directions

At this point in time, it seems premature to advocate for an independent tort of ethical malpractice grounded in the idea that professional ethical guidelines establish legally binding duties. As noted above, this approach may shift law’s expectations of reasonable physician behavior to be too aspirational, which is at odds with the traditional understanding of tort law. Alternatively, it may weaken health care providers’ willingness to engage in nuanced ethical reasoning by offering them a simple and uniform way of satisfying legal requirements. Furthermore, the U.S. tort system as a whole is widely acknowledged to be inefficient[284] and has been challenged by both plaintiffs and defendants as unjust. That said, the research in Part III indicates that under the status quo, patients who are injured by ethical violations are often unable to recover.

While recognizing ethical malpractice as an independent cause of action may be premature, it is a mistake to reject the legal relevance of ethical principles in medicine entirely. There is no reason why ethical guidelines shouldn’t be considered relevant to an expert’s assessment of the professional standard of care, in such a way that a breach of those ethical guidelines might subject the defendant to liability under traditional malpractice principles.

However, if breaches of professional ethics were simply viewed as breaches of the standard of care under traditional malpractice principles, they would be subject to the same limitations as that model. The most significant of these, when considering the types of situations in which ethical violations often arise, is the requirement that a plaintiff in a malpractice suit demonstrate physical—not just dignitary—harm. Thus, the more cautious approach of recognizing professional ethics as relevant to the standard of care would not address the concerns of patients with intangible injuries.

Perhaps, over time, if some context-specific ethical guidelines become well established in medical practice, courts might be willing to translate them into an independent duty of care. By way of example, the ethical duty of confidentiality has become fairly well integrated into various common law theories of recovery, even if not every court accepts it as an independent cause of action.[285] Perhaps there may be other ethical principles that are so well established in modern medical practice such that they ought to be recognized more formally as a basis for civil recovery when breaches occur. Potential opportunities might include: discrimination on the basis of race, gender, age, disability, and other protected characteristics;[286] appropriate situations for withdrawal of life-sustaining treatment;[287] physicians’ obligations to be vaccinated to protect their patients;[288] maintaining appropriate sexual boundaries;[289] and managing conflicts of interest.[290] Or, as in the case of informed consent, courts might step in to create a legal duty even though medicine has not yet fully adopted an ethical practice.

If such a move were to occur, there are numerous practical and procedural questions that would need to be considered. For example, whether claims for ethical malpractice would be subject to the same procedural limitations as medical malpractice claims (such as pre-certification requirements, abbreviated statutes of limitations, and damages caps); whether evidence of compliance or deviation from ethical standards would be dispositive with respect to liability, or if there would be some flexibility to consider their evidentiary value; and finally, whether claims of ethical malpractice would require proof of physical injury, or if they might be brought on the basis of dignitary harm alone, which would raise questions about appropriate calculation of damages.[291]

It is impossible to predict how common law will develop. That said, as more litigants affirmatively introduce principles of medical ethics to support their claims, courts may begin—in some form or another—to recognize their injuries as legally compensable harms.

  1. See infra Section III.B.

  2. See Jonathan Edwards, Families Say a Fertility Doctor Used His Own Sperm to Impregnate Patients. Now, He Must Pay Them Millions, Wash. Post (July 30, 2021, 6:02 AM), https://www.washingtonpost.com/nation/2021/07/30/fertility-doctor-wrong-sperm/ [https://perma.cc/V5AU-MGZ2] (reporting on a physician who impregnated patients seeking fertility counseling with his own sperm, where patients were not made aware they would receive his sperm).

  3. See Jen Guadarrama, Doctor Linked to Deadly Patient Overdoses in Tennessee Before Moving to Indy Sentenced, Indianapolis Star (June 16, 2021, 2:00 PM), https://www.indystar.com/story/news/crime/2021/06/16/tennessee-opioid-drug-case-doctor-darrel-rinehart-sentenced-overdoses/7715790002/ [https://perma.cc/4W25-S4RZ] (reviewing the physician’s history of knowingly prescribing opioids and other medications “without a medical purpose”).

  4. See Jackie Drees, Physicians Who Post COVID-19 Vaccine Misinformation May Lose License, Medical Panel Says, Becker’s Hosp. Rev., https://www.beckershospitalreview.com/digital-marketing/physicians-who-post-covid-19-vaccine-misinformation-may-lose-license-medical-panel-says.html [https://perma.cc/BE3E-HEZQ] (Aug. 5, 2021, 4:45 PM) (reporting on a statement made by the Federation of State Medical Boards that providers who spread vaccine misinformation are subject to disciplinary action because the ethical and professional responsibilities inherent to the profession demand a factual basis for the practice of medicine and sharing of information); see also Peter Aldhous, Doctors Are Attacking COVID Vaccines and Promoting Bogus Cures – And Getting Away with It, BuzzFeed News (Sept. 29, 2021, 11:25 PM), https://www.buzzfeednews.com/article/peteraldhous/covid-disinformation-doctors-disciplinary-action [https://perma.cc/S4BV-A9C8] (setting out examples of providers in Texas and California who spread misinformation but were not disciplined, and arguing that this pattern of misconduct without subsequent discipline reflects a national problem).

  5. Ivermectin Prescriptions an Ethics Breach, Says Doctor, ABS-CBN News (May 3, 2021, 10:37 AM), https://news.abs-cbn.com/video/news/05/03/21/ivermectin-prescriptions-an-ethics-breach-says-doctor [https://perma.cc/GXS4-LH7K] (quoting a public health expert’s belief that prescribing ivermectin is an ethics breach because there is no factual basis for its use or data-driven reason for a good faith belief in its efficacy).

  6. See Tanner Stening, With COVID-19 Infections Surging, Can Doctors Refuse Treatment to Unvaccinated Patients?, News@Northeastern (Aug. 25, 2021), https://news.northeastern.edu/2021/08/25/with-covid-19-infections-surging-can-doctors-refuse-treatment-to-unvaccinated-patients/ [https://perma.cc/M9LA-2E8K] (noting that in nonemergency situations, a provider may lawfully refuse to treat patients such as unvaccinated patients so long as the refusal is not motivated by animus against race, gender, sexuality, religion, or other statutorily prohibited reasons, and concluding that there is a tension between duties owed to individual patients and duties owed to the community in which the physician practices); see also Can Physicians Decline Unvaccinated Patients?, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/can-physicians-decline-unvaccinated-patients [https://perma.cc/5HGR-SXVE] (last updated Sept. 15, 2021) (concluding that in general, a physician may not refuse a patient because of vaccination status, although the obligation to treat an unvaccinated patient is not absolute and must be considered in light of the risks to other patients and the physician’s ability to continue to provide care for others).

  7. See Sema Sgaier & Jordan Downey, What We See in the Shameful Trends on U.S. Maternal Health, N.Y. Times (Nov. 17, 2021), https://www.nytimes.com/interactive/2021/11/17/opinion/maternal-pregnancy-health.html [https://perma.cc/2BQU-YZY7] (explaining the correlation between race and increased rate of maternal risk, discussing how community-level factors such as housing and transportation further increase maternal risk when unavailable, and highlighting that these community-level factors are more available in predominantly White and higher socioeconomic status communities).

  8. See Mike Donoghue, Civil Rights Lawsuit Filed Against SVMC, Podiatry Chief, Bennington Banner (Sept. 10, 2021), https://www.benningtonbanner.com/local-news/civil-rights-lawsuit-filed-against-svmc-podiatry-chief/article_d63f7744-1279-11ec-96bb-337cc6aae3f1.html [https://perma.cc/8G8L-5Q78] (podiatry residents filed a multi-count complaint alleging that they were subjected to discrimination and harassment based on race, ethnicity, and religion, which resulted in retaliatory discharge, failure to protect whistleblowers, and other labor-law-related issues).

  9. See Neil Vigdor, Doctors Are Investigated After Posting Organ Photos Online as ‘Price Is Right’ Game, N.Y. Times (Mar. 15, 2021), https://www.nytimes.com/2021/03/15/us/grand-rapids-instagram-surgery-photos.html [https://perma.cc/A2KR-UHFD] (presented as an example of physician conduct that “certainly is a serious breach of ethics” but does not clearly trigger liability under current tort law).

  10. See Terry Tsang, Support HB – 5067 to Stop Non-Consensual Pelvic/Prostate Exams Under Anesthesia, Conn. Mirror (Mar. 17, 2021), https://ctmirror.org/category/ct-viewpoints/show-respect-ask-patients-before-using-them-to-teach-support-hb-5067-to-stop-non-consensual-pelvic-prostate-exams-under-anesthesia-for-educational-purposes-terry-tsang [https://perma.cc/Z33T-EH9C] (discussing the lack of specificity in consent forms presented to patients at Yale New Haven Health prior to undergoing surgery requiring general anesthesia, where women are not made aware they may be subjected to a nonconsensual pelvic exam during surgery that is unrelated to and not indicated by the reason for surgery); see also Phoebe Friesen et al., Legislative Alert: The Ban on Unauthorized Pelvic Exams, 25 NYSBA Health L.J., Winter 2020, at 29, 29–34 (summarizing the history of nonconsensual pelvic exams performed while a patient is under anesthesia and the medical field’s failure to address this conduct, resulting in twenty-two bills across seventeen states intended to address this harmful conduct, which is unethical but not tortious); Lori Bruce, A Pot Ignored Boils On: Sustained Calls for Explicit Consent of Intimate Medical Exams, 32 HEC F. 125, 126, 128 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7223770/ [https://perma.cc/AVQ2-GUJ3] (setting out a brief history of nonconsensual pelvic exams, and then presenting official position statements by the Association of American Medical Colleges (AAMC), the American College of Obstetricians and Gynecologists (ACOG), and the American Medical Association (AMA), such as the AAMC’s statement that “such practice is unethical and unacceptable”).

  11. See Jill Castellano, New Details Exposed in Unethical Liver Study at San Diego VA, CBS8, https://www.cbs8.com/article/news/local/inewsource/unethical-liver-study-san-diego-va/509-cbbaea16-cbac-4b8a-b61b-cc7dee98db25 [https://perma.cc/EQ9V-2QPL] (Feb. 16, 2021, 4:55 PM) (reporting on additional liver tissue removed from VA patients during biopsies, without consent, for research purposes).

  12. See Adam Gabbatt, ‘He Hurt Me’: Migrants Who Accused ICE Gynecologist of Abuse Speak Out, Guardian (Nov. 21, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/nov/21/congress-ice-gynecologist-abuse-allegations-petition [https://perma.cc/F9WM-8GVK] (reporting that after women set forth claims of sexual abuse by Dr. Mahendra Amin, the women were deported or placed on a list for deportation).

  13. See Amy Silverman, Anger at Phoenix Facility Where Incapacitated Woman Gave Birth, Guardian (Jan. 20, 2019, 6:00 PM), https://www.theguardian.com/us-news/2019/jan/20/phoenix-coma-woman-gave-birth [https://perma.cc/ZCN2-689N] (discussing woman who became pregnant while incapacitated, which was undoubtedly the result of rape given that she had been nonresponsive and incapacitated since early childhood and could not have consented to sexual activity); James M. DuBois et al., Sexual Violation of Patients by Physicians: A Mixed-Methods, Exploratory Analysis of 101 Cases, 31 Sexual Abuse 503, 514, 517 (2019) (discussing how sexual contact with patients is unethical and harms patients but has not been resolved at the state level through licensure, boards, or professional groups issuing statements discouraging or prohibiting such conduct, illustrating that unethical conduct is difficult to deter without tort liability).

  14. See Some High-Profile Doctors Who Sexually Abused Their Patients, Atlanta J.-Const., https://doctors.ajc.com/sex_abuse_doctors_profiles/ [https://perma.cc/6V3H-UKEJ] (profiling doctors who sexually assaulted women and what consequences they faced, such as: Dr. Harold Bloomfield, who drugged and sexually assaulted two women, resulting in community service and being barred from practice for five years; Dr. Kevin Brown, who was found guilty on twenty-one counts including sexual penetration with a foreign object, resulting in twelve and a half years in prison and sex offender registration; Dr. William Warren Frost, who pled guilty to two counts of indecent assault following the allegations of multiple women, resulting in license revocation and two counts of indecent assault; Dr. Nelson Hendler, who “engaged in sexual misconduct” including dispensing drugs in return for oral sex, resulting in suspension of his license and “probation before judgment” resulting in expungement of court records and retention of ownership in a clinic; Dr. Melvin Levine, who was credibly suspected of abusing “thousands of pediatric patients” across multiple decades but faced no charges because he ended his life one day after the complaint was filed; Dr. Guy Owens, who was accused by more than six women of sexual assault enabled by his prescribing pain medications to them, resulting in three years of probation in lieu of incarceration; Dr. Raymond Reiter, a former physician for the NBA’s Nets and NFL’s Giants who pled guilty to one count of criminal sexual assault and four counts of criminal sexual conduct, resulting in license revocation and one year in prison); see also Deb Erdley, 10 Years Later, Sandusky Scandal at Penn State Has Opened the Door to Others Coming to Light, Experts Say, Pitt. Trib. Rev. (Nov. 5, 2021, 12:01 AM), https://triblive.com/news/pennsylvania/ten-years-later-sandusky-scandal-at-penn-state-has-opened-the-door-to-others-coming-to-light-experts-say/ [https://perma.cc/XT9Q-RPV8] (explaining how media coverage of abuse perpetrated by Jerry Sandusky led to victims of sexual assault coming forward, resulting in Michigan State paying $500 million to settle claims related to Dr. Larry Nassar, Ohio State paying $41 million to settle sexual assault claims related to Dr. Richard Strauss, the University of Southern California paying in excess of $852 million to settle sexual assault claims related to Dr. George Tyndall, and the University of Michigan spending $10.7 million on defending lawsuits, investigations, and counsel for victims of sexual assault); Sexual Abuse by Hospitals and Medical Centers, Levy Konigsberg LLP, https://www.sexabuseclaimscenter.com/sexual-abuse-by-hospitals-and-medical-centers/ [https://perma.cc/YJ3P-7LJH] (pointing out that sexual assault settlements frequently include a confidentiality agreement and that hospitals do not have an obligation to report when staff are investigated or disciplined for sexual abuse and may avoid liability by terminating physicians).

  15. See cases cited supra note 14.

  16. Revocation of clinical privileges, professional discipline, and criminal punishment result in revocation or limitation of the physician’s right to practice but do not result in compensation for patients who have been injured. Civil monetary penalties, which may be imposed for breaches of (for example) the Centers for Medicare and Medicaid Services’ Conditions of Participation, are paid to state and federal regulatory agencies rather than injured patients. See, e.g., Civil Monetary Penalty Reinvestment Fund, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/LTC-CMP-Reinvestment [https://perma.cc/VN3Y-JJE9] (last visited Jan. 1, 2022); 42 C.F.R. § 488.433 (2020).

  17. See Barry Furrow et al., Health Law 76–77 (3d ed. 2014).

  18. See infra Section III.B.

  19. See infra Section III.B.

  20. See infra Section III.B.

  21. See Cristina Carmody Tilley, Tort Law Inside Out, 126 Yale L.J. 1320, 1346 (2017) (describing tort doctrine as a means of closing gaps in “open-textured” cases); Jay M. Feinman, Unmaking and Remaking Tort Law, 5 J. High Tech. L. 61, 62 (2005) (describing progressive tort law as “ad hoc . . . innovat[ing] to fill gaps in other means of the regulation of safety and the compensation of victims”); Jeffrey A. Pojanowski, Private Law in the Gaps, 82 Fordham L. Rev. 1689, 1716–17 (2013) (describing competing views of tort law’s gap-filling function).

  22. Ellen Fox et al., Medical Ethics Education: Past, Present, and Future, 70 Acad. Med. 761, 761–67 (1995) (identifying and analyzing various methods regarding the education of medical ethics); Robert M. Veatch & Diane Fenner, The Teaching of Medical Ethics in the United States of America, 1 J. Med. Ethics 96, 99–103 (1975) (illustrating the growth in teaching medical ethics in professional and medical schools over time).

  23. See infra Section III.A.2.

  24. See infra Section III.A.1–2.

  25. See infra Section III.A.2.

  26. See infra Section III.A.3.

  27. 45 C.F.R. § 46(A) (1991).

  28. See generally Charles P. Sabatino, The Evolution of Health Care Advance Planning Law and Policy, 88 Milbank Q. 211 (2010).

  29. Unif. Determination of Death Act (1981).

  30. Drew DeSilver, Congress Is Off to a Slow Start in 2021, Much as It Has Been in Previous Years, Pew Rsch. Ctr. (Aug. 13, 2021), https://www.pewresearch.org/fact-tank/2021/08/13/congress-is-off-to-a-slow-start-in-2021-much-as-it-has-been-in-previous-years/ [https://perma.cc/3WSV-2PCZ] (discussing the challenges of passing legislation in general).

  31. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2025–26 (1996) (examining the expressive function of the law by analyzing the statement that laws make with respect to social norms).

  32. The Author is not aware of this terminology being used in the medical context, but it has been used in the context of legal malpractice. In one jurisdiction, Illinois, some claimants have explicitly sought recovery using the language of “ethical malpractice,” and courts have rejected their attempts to do so. See, e.g., Nagy v. Beckley, 578 N.E.2d 1134, 1138 (Ill. App. Ct. 1991) (rejecting “ethical malpractice” as a distinct cause of action); Skorek v. Przybylo, 628 N.E.2d 738, 740 (Ill. App. Ct. 1993) (noting that the cause of action of “ethical malpractice” does not exist in Illinois); Bay Grp. Health Care, LLC v. Ginsberg Jacobs, LLC, No. 15 C 0986, 2017 WL 770984, at *6 (N.D. Ill. Feb. 28, 2017) (“There is no ‘ethical malpractice’ or ‘professional responsibility tort’ in Illinois.”).

  33. See infra Section III.B.1, III.B.3.

  34. See infra Section III.B.1.

  35. Edmund D. Pellegrino & David C. Thomasma, A Philosophical Basis of Medical Practice 195 (1981) (describing the Hippocratic Oath as “the wellspring for much of medical ethics in nineteenth-century America”); Albert R. Jonsen, A Short History of Medical Ethics 95 (2000) (in describing the history of medical ethics, noting that the “decorum described in the Hippocratic books . . . still suited the American doctor” of the twentieth century).

  36. Although this phrase is sometimes part of the versions of the Oath used in modern medical schools, it may come as a surprise to many that “first, do no harm” is not part of the original text of the Oath. See Spyros Retsas, Rapid Response: First Do No Harm: The Impossible Oath, BMJ (July 19, 2019), https://www.bmj.com/content/366/bmj.l4734/rr-2 [https://perma.cc/N45D-8AFA]; Editor’s Note, The Lie of Primum Non Nocere, 64 Am. Fam. Physician 1942 (2001) (citing A.R. Jonsen, Do No Harm, 88 Annals Internal Med. 827–32 (1978)).

  37. See, e.g., Steven H. Miles, The Hippocratic Oath and the Ethics of Medicine 2 (2004) (“After 2,400 years, its age is showing. It swears by Apollo and includes an ethic for treating slaves. It does not mention informed consent and disavows surgery. It did not anticipate managed care.”); Fabrice Jotterand, The Hippocratic Oath and Contemporary Medicine: Dialectic Between Past Ideals and Present Reality?, 30 J. Med. & Phil. 107, 108 (2005) (describing the Oath as “show[ing] more confusion than clarity” and serving a “symbolic” rather than a practical role in the history of medicine); Kamran Abbasi, First Do No Harm: The Impossible Oath, BMJ (July 19, 2019), https://www.bmj.com/content/366/bmj.l4734 [https://perma.cc/KM5P-PVJT] (“First do no harm, it seems, is an ancient oath true in spirit but impossible to practise in the messy business of modern healthcare.”).

  38. Those interested in learning more about this history would be well-advised to read David. J. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (1991).

  39. See generally Jonsen, supra note 35, at 99–102, 108–09, 117 (describing the Tuskegee Syphilis Study as the “one event [that] more than any other propelled the old medical ethics” forward).

  40. Rothman, supra note 38, at 1.

  41. Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics 13 (8th ed. 2019). The text is currently in its eighth edition, and its principles are still widely relied upon today. Tom Beauchamp & James Childress, Principles of Biomedical Ethics: Marking Its Fortieth Anniversary, Am. J. Bioethics, Oct. 24, 2019, at 9.

  42. See Chiara Crico et al., Evaluating the Effectiveness of Clinical Ethics Committees: A Systematic Review, 24 Med. Health Care Phil. 135, 144–45, 148 (2020) (explaining that ethics committees informally take on an educational role during consultations, perform formal educational activities to train staff on recognizing and responding to common ethical issues, and introduce ethical considerations into the treatment relationship, such as advocating for patient autonomy and reminding providers of ethical duties regarding the provision of care based on patient values).

  43. See Stephen Gillers et al., Regulation of Lawyers: Statutes and Standards 163 (2008) (drafter’s annotations explaining what ethical principles are implicated by ABA Model Rules of Professional Conduct); see also Commission on Ethics 20/20, Am. Bar Ass’n, https://www.americanbar.org/groups/professional_responsibility/committees_commissions/standingcommitteeonprofessionalism2/resources/ethics2020hompeage/ [https://perma.cc/P4H6-6DQ6] (last visited Jan. 31, 2022) (ABA page offering materials produced by the ABA’s commission on ethics).

  44. See Morten Magelssen et al., Four Roles of Ethical Theory in Clinical Ethics Consultation, Am. J. Bioethics, July 29, 2016, at 26–27 (describing the role of normative ethical theories in assisting in, but not determining the outcomes of, clinical ethics consultations); Joseph B. House et al., Understanding Ethical Dilemmas in the Emergency Department: Views from Medical Students’ Essays, 48 J. Emergency Med. 492, 495–96 (2015) (using medical student’s reflections on ethical conflicts to demonstrate that ethical principles are complex, conflicting, and difficult to apply in practice).

  45. See Glenn McGee et al., A National Study of Ethics Committees, Am. J. Bioethics, Dec. 7, 2010, at 62 (noting that while only 1% of U.S. hospitals had ethics committees in 1983, by 1998 that figure was over 90%, and indicating that this rise may have been in part due to Joint Commission Requirements); Ellen Fox et al., Ethics Consultation in United States Hospitals: A National Survey, Am. J. Bioethics, Mar. 12, 2007, at 15 (finding that 100% of hospitals with more than 400 beds, and 81% of all general hospitals, have ethics consultation services).

  46. See McGee et al., supra note 45, at 60–64 (reporting results of a questionnaire given to members of ethics committees, and noting that “[t]he majority of consultation time was spent on issues of patient autonomy; the capacity of patients to make their own health decisions; and on miscommunication among staff, clinicians, and patients about the meaning and goals of treatment”); see also Marion Danis et al., Health Care Ethics Programs in U.S. Hospitals: Results from a National Survey, BMC Med. Ethics, July 29, 2021, at 2–6, 11–12 (noting that ethics committees are increasingly taking on a role in policy development and working to educate providers on ethical duties, in addition to supporting patients and families during consultations); George Annas & Michael Grodin, Hospital Ethics Committees, Consultants, and Courts, 18 AMA J. Ethics 554, 556–57 (2016) (summarizing the development of ethics committees after the Quinlan case and noting that in large “safety net” hospitals, disputes before ethics committees reflect increasing concern about end of life issues such as disagreement between providers and the patient or the patient’s family on “treatment judged to be nonbeneficial or even harmful”).

  47. Clinical Ethics, Cleveland Clinic, https://my.clevelandclinic.org/departments/patient-experience/depts/bioethics/bioethics/clinical-ethics [https://perma.cc/HRY6-WQXD] (last visited Feb. 1, 2022) (describing the operation and function of the Clinic’s Center for Bioethics).

  48. See Decisions for Adult Patients Who Lack Capacity, Code of Medical Ethics Opinion 2.1.2, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/decisions-adult-patients-who-lack-capacity [https://perma.cc/S5SS-9LJU] (last visited Feb. 4, 2022) (discussing decisions for adult patients who lack capacity).

  49. Committee Opinion No. 664: Refusal of Medically Recommended Treatment During Pregnancy Am. Coll. Obstetricians and Gynecologists 2, 5 (2016), https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-opinion/articles/2016/06/refusal-of-medically-recommended-treatment-during-pregnancy.pdf [https://perma.cc/B3UG-NUAD].

  50. See Romantic or Sexual Relationships with Patients, Code of Medical Ethics Opinion 9.1.1, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/romantic-or-sexual-relationships-patients [https://perma.cc/7E6Q-DLLT] (last visited Feb. 20, 2022) (discussing romantic or sexual relationships with patients); Council on Ethical & Jud. Affs., Physicians with Disruptive Behavior, Report 3-I-09 (2009).

  51. See Transparency in Health Care, Code of Medical Ethics Opinion 11.2.4, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/transparency-health-care [https://perma.cc/D6UW-2YPC] (last visited Feb. 20, 2022) (discussing transparency in health care); Council on Ethical & Jud. Affs., Physicians’ Self-Referral, Report 1-I-08 (2008).

  52. Committee Opinion No. 385: The Limits of Conscientious Refusal in Reproductive Medicine, 110 Am. Coll. Obstetricians & Gynecologists 1203, 1203–07 (2007).

  53. See Opinion 9.121 – Racial and Ethnic Health Care Disparities, Code of Medical Ethics, 16 Am. Med. Ass’n J. Ethics 440, 440–41 (2014).

  54. That said, the ethics opinions of professional associations reflect only the consensus of their membership, which is not reflective of the full population of U.S. health care providers. See Roger Collier, American Medical Association Membership Woes Continue, 183 Can. Med. Ass’n J. 713, 713 (2011) (noting that today approximately 15% of physicians are AMA members, down from 75% in 1950); see also Group of 6, http://www.groupof6.org/home.html [https://perma.cc/FPF4-4UL7] (last visited Mar. 1, 2022) (providing membership statistics including: the AAFP with 136,000 members; the ACP with 163,000 members; the ACOG with 60,000 members; the AOA with 151,000 members; and the APA with 37,400 members).

  55. See infra Section III.A.

  56. See Matt Driffill & Christian Garzone, Rochester Doctor Accused of Using Own Sperm to Inseminate Female Patient in New Lawsuit, RochesterFirst, https://www.rochesterfirst.com/news/local-news/rochester-doctor-accused-of-using-own-sperm-to-inseminate-female-patients-in-new-lawsuit-dr-morris-wortman-gynecologist-center-for-menstrual-disorders-alleged-medical-malpractice/ [https://perma.cc/8SS4-MR5X] (Sept. 14, 2021, 2:18 PM) (summarizing the claims brought against Dr. Morris Wortman, who artificially inseminated women with his own sperm).

  57. See Adam Liptak, When Dad Turns Out to Be the Fertility Doctor, N.Y. Times (Dec. 11, 2019), https://www.nytimes.com/2019/12/11/magazine/fertility-fraud-sperm.html [https://perma.cc/92D4-Y7AM] (noting that even where DNA evidence conclusively proves that a physician inseminated the plaintiff’s mother, cases face dismissal on the grounds that the physician did not owe a duty of care to the plaintiff, allowing this conduct to “fall into a legal gray area”); see also Jody Lyneé Madeira, News on the Fertility Fraud Front: Mortimer v. Rowlette Raises Possibility of Punitive Damages, Bill Health (Apr. 22, 2020), https://blog.petrieflom.law.harvard.edu/2020/04/22/fertility-fraud-mortimer-rowlette-damages/ [https://perma.cc/GN32-447Q] (summarizing the court’s holding that Dr. Gerald Mortimer owed no duty of care to the now-adult daughter who was conceived using Dr. Mortimer’s sperm because the tortious conduct at issue predates her conception and under current tort law the now-adult daughter lacks standing); Sydni R. Eibshutz, “Dr., I Don’t Want Your Baby!”: Why America Needs a Fertility Patient Protection Act, 106 Iowa L. Rev. 905, 912–21 (2021) (providing a history of physicians deceiving patients by using their own sperm during artificial insemination, arguing for federal legislation to regulate and impose criminal liability on such conduct, and noting that “[t]he difficulty in prosecuting primarily arises from the lack of proper characterization of the doctor’s behavior. Prosecutors don’t know what to qualify this crime as–is it assault, fraud, battery, a civil tort, a breach of contract? The list of possibilities is seemingly endless and yet the crime may not perfectly fit the elements of any of those offenses.” (footnote omitted)); Dov Fox, Reproductive Negligence, 117 Colum. L. Rev. 149, 155–57 (2017) (writing that conduct which invades reproductive and bodily autonomy, “however egregious or devastating, invades no ‘legally protected interest’ [and] violates no right” because “[e]xisting causes of action lack the narratives required” for plaintiffs to be heard in court, such as the proof of bodily harm required for medical malpractice actions).

  58. While it is possible that physicians might be subject to professional disciplinary action by state medical boards on these grounds, see Aldhous supra note 4, to date such actions have been minimal; Geoff Brumfiel, A Doctor Spread COVID Misinformation and Renewed Her License with a Mouse Click, NPR (Nov. 4, 2021, 5:01 AM), https://www.npr.org/sections/health-shots/2021/11/04/1051873608/a-doctor-spread-covid-misinformation-and-renewed-her-license-with-a-mouse-click [https://perma.cc/LC7H-Z77N] (using Dr. Lee Merritt, who spreads false information on COVID-19, as an example of how physicians are not disciplined for exhibiting conduct which invites or requires formal disciplinary actions; despite Dr. Merritt’s false public statements, such as saying that vaccination increases risk of death and that COVID-19 is a global conspiracy, Dr. Merritt has not been disciplined); see also Two-Thirds of State Medical Boards See Increase in COVID-19 Disinformation Complaints, Fed’n St. Med. Bds. (Dec. 9, 2021), https://www.fsmb.org/advocacy/news-releases/two-thirds-of-state-medical-boards-see-increase-in-covid-19-disinformation-complaints/ [https://perma.cc/9TRA-BA98] (providing statistics on complaints received by state medical boards regarding physicians who spread false information, and finding that despite a 67% increase in complaints related to the spread of false information, only twelve boards have taken action); Victoria Knight, Will Doctors Who Are Spreading COVID-19 Misinformation Ever Face Penalty?, Time (Sept. 20, 2021, 3:10 PM), https://time.com/6099700/covid-doctors-misinformation/ [https://perma.cc/J8LF-HME3] (explaining structural reasons for a lack of discipline by medical boards, and using a group of prominent physicians, called the “Disinformation Dozen,” who spread false COVID-19 information, as an example).

  59. For example, to the extent that courts look to professional discipline as proof that a doctor breached a duty in a tort action, they cannot do so until the medical board review is complete. See Knight, supra note 58.

  60. See Christopher P. Guzelian, True and False Speech, 51 B.C. L. Rev. 669, 691–92 (2010) (noting that to prove liability for a “speech tort, it must be known through empirical evidence that speech caused the litigated injury,” and offering examples of how judges “have struggled to objectively adjudicate questions of speech causation”).

  61. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1, 34, 42 (2000) (discussing one of the leading commercial speech cases, Central Hudson, then arguing it cannot be extended to provide a clear framework for analyzing the constitutionality of commercial speech regulations); see also Claudia E. Haupt, Professional Speech, 125 Yale L.J. 1238, 1285–86 (2016) (explaining the interaction between First Amendment protections on speech, professional standards, and tort liability for malpractice).

  62. See Furrow et al., supra note 17, at 72–73, 278–79 (noting that formation of a doctor–patient relationship includes the contract law elements of offer and acceptance and that physicians may decline to treat patients for any nondiscriminatory reason).

  63. Under EMTALA, codified at 42 U.S.C. § 1395dd, any emergency room receiving federal funds must provide treatment and stabilizing services consistent with the hospital’s internal protocol and satisfactory ability to render those services, regardless of the patient’s ability to pay for care. See Furrow et al., supra note 17, at 279; 42 U.S.C. § 1395dd.

  64. See Patient Protection and Affordable Care Act (PPACA), 42 U.S.C. § 18116 (Section 18116 prohibits providers affiliated with covered entities and health programs from discriminating on the basis of race, color, national origin, age, disability, or sex); see also Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737–38, 1740–42 (2020) (where the Court considered a claim brought by a county employee who faced discrimination on the basis of sexual orientation and held that the term “sex” as used in the Civil Rights Act includes pregnancy, sexual orientation, and gender-related discrimination). For a media-reported example of a situation where statutory protections might apply, see John Eligon, Black Doctor Dies of COVID-19 After Complaining of Racist Treatment, N.Y. Times (Dec. 25, 2020), https://www.nytimes.com/2020/12/23/us/susan-moore-black-doctor-indiana.html [https://perma.cc/4L4V-W43J], which summarizes the attempts of Dr. Susan Moore, a Black physician, to be heard and taken seriously by providers. After Dr. Moore was admitted to the hospital for COVID-19 she reported her pain to a White physician, who “told her that he felt uncomfortable giving her more narcotics . . . and suggested that she would be discharged.” Dr. Moore was discharged to her home, and later passed away due to COVID-19 related complications. Id.

  65. See Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, 86 Fed. Reg. 27984 (May 10, 2021) (to be codified at 45 C.F.R. 86 and 45 C.F.R. 92) (placing enforcement authority for section 1557 of the Affordable Care Act exclusively in the hands of HHS).

  66. See Suzette M. Malveaux, Clearing Civil Procedure Hurdles in the Quest for Justice, 37 Ohio N.U. L. Rev. 621, 623 (2011) (explaining why pleading requirements create an evidentiary hurdle that many plaintiffs alleging a civil rights violation cannot overcome).

  67. See Elizabeth Kukura, Obstetric Violence, 106 Geo. L.J. 721, 782–84, 788–89 (2018) (explaining that women who are pressured or coerced into undergoing a cesarean section or other unwanted medical procedures often decline to file suit because tort claims require showing the breach of a duty, and courts typically do not find the physician’s conduct breached the duty of care if the delivery was “successful”); see also Farah Diaz-Tello & Lynn Paltrow, NAPW Working Paper: Birth Justice as Reproductive Justice 4 (May 2012) (unpublished draft) (on file with the National Advocates for Pregnant Women) (discussing the role of race in birth, and citing statistics that 80% of court-ordered cesareans were performed on women of color and of those women 24% did not speak English as their first language); Nadia N. Sawicki, Obstetric Battery, Bill Health (Feb. 20, 2017), https://blog.petrieflom.law.harvard.edu/2017/02/20/obstetric-battery/ [https://perma.cc/25MP-EHVT] (discussing possibilities for tort liability in the case of Kimberly Turbin, whose physician, Dr. Abbassi, made twelve incisions against her vigorous objections to an episiotomy); Rinat Dray Decision Proves How Hard It Is for Women Subjected to Forced Surgeries to Get Justice, Nat’l Advoc. for Pregnant Women (Apr. 23, 2018), https://www.nationaladvocatesforpregnantwomen.org/rinat-dray-decision-proves-hard-women-subjected-forced-surgeries-get-justice/ [https://perma.cc/K9DT-FCPK] (addressing the case of Rinat Dray, who refused cesarean delivery but was forced to undergo surgery; this was documented in her medical records, where the attending physician wrote “[t]he woman has decisional capacity. I have decided to override her refusal to have a c-section.”).

  68. Kukura, supra note 67, at 781–82 (noting that women who experience mistreatment during childbirth have difficulty finding attorneys to take their case due to a perception of “insufficient damages”); see Kimberly Seals Allers, Obstetric Violence Is a Real Problem. Evelyn Yang’s Experience Is Just One Example., Wash. Post (Feb. 6, 2020), https://www.washingtonpost.com/lifestyle/2020/02/06/obstetric-violence-is-real-problem-evelyn-yangs-experience-is-just-one-example/ [https://perma.cc/Y8YD-4AHM] (discussing that lawyers often decline obstetrical tort cases, which resulted in Kimberly Turbin meeting with approximately eighty attorneys and crowdsourcing funding to retain counsel).

  69. See Phoebe Friesen et al., Legislative Alert: The Ban on Unauthorized Pelvic Exams, 25 Health L.J. 29–30 (2020) (summarizing the history of nonconsensual pelvic exams performed while a patient is under anesthesia and the medical field’s failure to address this conduct, resulting in twenty-two bills across seventeen states intended to address this harmful conduct, which is unethical but not tortious).

  70. See Valerie Gutmann Koch, A Private Right of Action for Informed Consent in Research, 45 Seton Hall L. Rev. 173, 202–03, 206–07 (2015) (arguing that the duty to secure informed consent and the cause of action for breach of this duty in clinical practice should extend to securing informed consent in research).

  71. See, e.g., Emily C. Hoskins, Actions Speak Louder Than Words: When Should Courts Find that Institutions Have a Duty to Protect Minor Children from Sexual Abuse?, 24 Chap. L. Rev. 487, 491–96 (2020) (discussing the Larry Nassar case and attempts to hold institutional actors accountable).

  72. See Furrow et al., supra note 17, 98–99 (noting that dignitary or emotional harm is a sufficient basis for recovery only as a separate claim for emotional distress, not as a claim for malpractice); Erin Sheley, Rethinking Injury: The Case of Informed Consent, 2015 BYU L. Rev. 63, 77 (2015) (criticizing the negligence and informed consent models as allowing for recovery only when physical injury results); see also Tasnim Motala, Words Still Wound: IIED & Evolving Attitudes Toward Racist Speech, 56 Harv. C.R.-C.L. L. Rev. 115, 120, 143 (2021) (arguing that the IIED cause of action does not adequately recognize dignitary harms, using racist speech as an example of a dignitary harm which tort fails to sufficiently remedy).

  73. Farah Diaz-Tello, Invisible Wounds: Obstetric Violence in the United States, 24 Repro. Health Matters, May 2016, at 56, 59 (citing the case of Kimberly Turbin, “who captured an unconsented episiotomy on video and still had to consult nearly 80 attorneys and crowdsource a pro se legal defence [sic] fund to file on her own before finding an attorney who would pursue the case”); see Turbin v. Abbassi (Super. Ct., L.A. Cnty., Cal., Docket #BC580006 (2015)).

  74. See Fox, supra note 57, at 165–66, 217 (explaining that courts often refuse to recognize wrongful birth and wrongful life claims based on the reasoning that no duty was owed to the child or that without physical injury the duty of care was not breached); see also Nadia N. Sawicki, A New Life for Wrongful Living, 58 N.Y. L. Sch. L. Rev. 279, 283–85, 288–89 (2014) (discussing the failure of tort law to recognize claims for wrongful living, where a provider renders care in contravention of the patient’s wishes); Thaddeus Mason Pope, Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, and Disciplinary Sanctions, 9 J. Health & Biomedical L. 213, 218–19, 226–28 (2013) (explaining that patients have a right to refuse life-sustaining interventions, and discussing recent recognition of the harms caused by rendering care against a patient’s wishes).

  75. See infra Section III.A.4.

  76. See infra Sections III.B.1, III.B.3.

  77. See infra Section III.B.3.

  78. “The liability of health care providers is governed by general negligence principles. Malpractice is usually defined as unskillful practice resulting in injury to the patient, a failure to exercise the ‘required degree of care, skill and diligence’ under the circumstances.” Furrow et al., supra note 17, at 76.

  79. The standards for evaluating the delivery of professional medical services are not normally established by either judge or jury. The medical profession itself sets the standards of practice and the courts enforce these standards in tort suits. Defendants trying to prove a standard of care normally present expert testimony describing the actual pattern of medical practice, without any reference to the effectiveness of that practice. Most jurisdictions have traditionally given professional medical standards conclusive weight, so that the trier of fact is not allowed to reject the practice as improper. Id. at 77–78. There are very limited exceptions to this rule. See id. at 78.

  80. Id. at 77; see also Brian K. Cooke et al., The Elusive Standard of Care, 45 J. Am. Acad. Psychiatry L. 358, 358–63 (2017) (giving a history of the standard of care and discussing the differences between the legal formulation of the standard of care and the medical formulation of the standard of care).

  81. “A physician is not a guarantor of good results, nor is he required to exercise the highest degree of care possible. As one court said, ‘The physician will not be held to a standard of perfection nor evaluated with benefit of hindsight.’” Furrow et al., supra note 17, at 76; see also Peter Moffett & Gregory Moore, The Standard of Care: Legal History and Definitions: The Bad and Good News, 12 W.J. Emergency Med. 109, 109–11 (2011) (discussing the history of law looking to medicine to define the standard of care, and arguing that this erodes the ability of tort law to protect patients based on shifting definitions and the low bar set by a physician-articulated definition of the standard of care).

  82. Furrow et al., supra note 17, at 77.

  83. But cf. James A. Henderson, Jr. & John A. Siliciano, Universal Health Care and the Continued Reliance on Custom in Determining Medical Malpractice, 79 Cornell L. Rev. 1382, 1383–85, 1389–93 (1994) (examining the disadvantages of deferring to custom to define the standard of care in medical malpractice cases); Sandra H. Johnson, Customary Standard of Care: A Challenge for Regulation and Practice, Hastings Ctr. Rep., Nov.–Dec. 2013, at 9, 9–10 (arguing that deferring to the medical profession to define the standard of care fails to consider the heterogenous nature of patients and the role of patient decision-making in medical treatment).

  84. Furrow et al., supra note 17, at 77; cf. Marc D. Ginsberg, The Locality Rule Lives! Why? Using Modern Medicine to Eradicate an Unhealthy Law, 61 Drake L. Rev. 321, 333–35 (2013) (identifying only a few states that still define standards of care using the locality rule instead of nationally consistent standards of care that do not vary across geographic location).

  85. Hall v. Hilbun, 466 So. 2d 856, 870–71 (Miss. 1985); see also Furrow et al., supra note 17, at 77 (citing Hall v. Hilbun as a good example of the view taken in most jurisdictions); Meghan C. O’Connor, The Physician-Patient Relationship and the Professional Standard of Care: Reevaluating Medical Negligence Principles to Achieve the Goals of Tort Reform, 46 Tort Trial & Ins. Prac. L.J. 109, 120–23 (2010) (explaining that many jurisdictions have adopted a national standard of care as adopted in Hall v. Hilbun and analyzing the court’s decision in that case).

  86. The Institute of Medicine defines “medical error” as “the failure of a planned action to be completed as intended (i.e., error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning).” Inst. of Med., To Err Is Human: Building a Safer Health System 28 (Linda T. Kohn et al. eds., 2000). Medical errors are the most common bases for medical malpractice suits. David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024, 2025–28 (2006) (finding that obstetrics, surgery, missed or delayed diagnosis, and medication are “key clinical areas of concern in research on patient safety” and account for approximately 80% of U.S. malpractice claims; that 63% of malpractice cases involving patient injury alleged medical error; that 73% of claims involving medical error received compensation; and recognizing that the IOM’s definition of error “is not synonymous with the legal definition of negligence”); Adam C. Schaffer et al., Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014, 177 JAMA Internal Med. 710, 713 (2017) (“Across all paid claims, the most common type of allegation was an error in diagnosis (31.8% . . . ), followed by errors related to surgery (26.9% . . . ), and errors related to medication or treatment (24.5% . . . ).”); R.L. Phillips Jr. et al., Learning from Malpractice Claims About Negligent, Adverse Events in Primary Care in the United States, 13 BMJ Quality & Safety 121, 124 (2004) (identifying the most common underlying causes of malpractice claims as diagnosis errors, failures to supervise or monitor a case, improper performance of a procedure, and medication errors).

  87. See Furrow et al., supra note 17, at 121–22.

  88. Jessica W. Berg et al., Informed Consent: Legal Theory and Clinical Practice 41–43 (2001) (describing the history of consent-based challenges to medical treatment, and noting that “courts were willing to find that a patient had not provided valid consent to treatment only in the most egregious circumstances”); Furrow et al., supra note 17, at 122–23 (noting that the duty to secure informed consent is satisfied in most jurisdictions even where the information provided to the patient on which the patient based their decision was incomplete; medical malpractice and other tort causes of action do not examine the sufficiency of information offered to a patient as an element of duty).

  89. See Berg et al., supra note 88, at 43–46.

  90. See id. at 14 (describing informed consent as “a cornerstone doctrine of contemporary medical ethics and health law in the United States”); AMA Code of Med. Ethics: Consent, Commc’n, & Decision Making, Op. E-2.1.1 (describing “[i]nformed consent to medical treatment” as being “fundamental in both ethics and law”).

  91. Furrow et al., supra note 17, at 125–26; Berg et al., supra note 88, at 53–61.

  92. The requirements for proving causation in fact and proximate causation in informed consent cases actually differ significantly from those in medical malpractice cases. Berg et al., supra note 88, at 133–34, 136–41 (discussing differences in the causation requirements for malpractice and informed consent cases and describing informed consent’s required elements of “injury-causation” and “[d]ecision-causation”).

  93. Id. at 42–46 (describing the development of the informed consent cause of action as separate from claims for battery or medical malpractice); id. at 133–34 (comparing contemporary informed consent claims to “early informed consent cases [that] were brought as professional negligence cases”).

  94. Id. at 62 (describing a Georgia Supreme Court case addressing both informed consent and malpractice claims); Beth Holliday, Causes of Action: 49 COA 2d § 3 (2011) (describing informed consent claims as being brought in addition to traditional malpractice claims); 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers § 148 (2022) (“There is no unanimity as to which theory of recovery a plaintiff must adopt if his or her claim involves a failure by a physician to adequately disclose the risks and alternatives of a proposed diagnostic, therapeutic, or surgical procedure. A patient has three avenues of tort relief against a doctor: (1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery.”).

  95. See Berg et al., supra note 88, at 41–44 (describing the history of consent-based challenges to medical treatment and noting that “courts were willing to find that a patient had not provided valid consent to treatment only in the most egregious circumstances”).

  96. Id. at 42 (“Early medical practice codes did not speak of consent–it was more likely that a physician would conceal his actions from the patient than seek his or her consent to treatment.”); see also Jay Katz, The Silent World of Doctor and Patient 1–3 (Johns Hopkins Press 2002) (noting that doctors historically viewed patients as being “in need of caring custody,” and that they were obligated to attend to the patient’s needs “on their own authority, without consulting with their patients about the decisions that needed to be made”).

  97. Katz, supra note 96, at 1.

  98. See id. at 2–3; Berg et al., supra note 88, at 44–46.

  99. See George J. Annas & Michael A. Grodin, The Nazi Doctors and the Nuremberg Code – Human Rights in Human Experimentation, 305 Int. Rev. Red Cross 227, 227–28 (1995) (describing how Nazi atrocities led to the development of the Nuremberg Code and explaining that the Code did not reflect or support modern practices at the time); see also George J. Annas, Beyond Nazi War Crime Experiments: The Voluntary Consent Requirement of the Nuremberg Code at 70, 108 Am. J. Pub. Health 42, 42–46 (2017) (discussing the limitations of the consent requirement created by the Nuremberg Code, because the Code does not articulate what is, and how to obtain, informed consent).

  100. See, e.g., Marc A. Rodwin, Patient Accountability and Quality of Care: Lessons from Medical Consumerism and the Patients’ Rights, Women’s Health and Disability Rights Movements, 20 Am. J.L. & Med. 147, 150–53 (1994) (describing the patient rights movement that began in the 1950s); Christine Laine & Frank Davidoff, Patient-Centered Medicine: A Professional Evolution, 275 JAMA 152, 153–54 (1996) (describing the evolution of the patient rights movement in medicine pertaining to patient care, health-related law, medical education, research, and quality assessment); Jonathan F. Will, A Brief Historical and Theoretical Perspective on Patient Autonomy and Medical Decision Making, 139 Chest 1491, 1491, 1495–96 (2011) (analyzing changes in medicine in the latter half of the twentieth century, including questioning of a physician’s authority and growth of patient autonomy); Berg et al., supra note 88, at 21 (describing the patient rights movement of the 1960s and 1970s).

  101. The AMA’s Principles of Medical Ethics in their modern form were formalized in 1957, and the AMA’s Judicial Council (now the Council on Ethical and Judicial Affairs) was tasked with issuing interpretive opinions about specific ethical issues. Am. Med. Ass’n, History of the Code (2017), https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/ethics/ama-code-ethics-history.pdf [https://perma.cc/9B7P-BP85].

  102. See generally Berg et al., supra note 88, at 11–12, 20–21.

  103. At least some scholars argue that attorneys and judges created the duty of informed consent out of whole cloth, without any meaningful support or reflection in actual medical practice See, e.g., Katz, supra note 96, at 2–3 (describing that judicial decision-making in the area of informed consent was not based on the medical profession’s customary practice, and was in fact a “radical break with medical practices . . . [for] more than two thousand years of recorded medical history”).

  104. Berg et al., supra note 88, at 46–47 (explaining that there was no professional custom of disclosure at the time that courts first began imposing a duty to secure informed consent).

  105. Modern commentators have argued for the extension of tort law even further, based on changing practices and the changing nature of treatment and research relationships. See, e.g., Valerie Gutmann Koch, A Private Right of Action for Informed Consent in Research, 45 Seton Hall L. Rev. 173, 177 (2015) (proposing “that the ethical duty to disclose research findings . . . supports a private right of action for research participants”).

  106. See Confidentiality: Code of Medical Ethics Opinion 3.2.1, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/confidentiality [https://perma.cc/KKW2-6A2W] (last visited Feb. 20, 2022) (discussing confidentiality).

  107. See Cause of Action Against Physician or Other Health Care Practitioner for Wrongful Disclosure of Confidential Patient Information, 36 Causes of Action 2d 299 (2008) [hereinafter Cause of Action] (identifying three legal theories that patients use in asserting a common law action against a health care provider who wrongfully disclosed patient information: “tortious breach of a duty of confidentiality . . . breach of a contractual duty of confidentiality . . . and invasion of privacy,” and also noting that some jurisdictions may not recognize this as a tortious breach of duty); 116 Am. Jur. Proof of Facts 3d §§ 2, 6–8 (2010) (citing fiduciary duty, breach of contract, medical malpractice, negligence, and invasion of privacy as possible avenues for recovery when a doctor breaches a duty of confidentiality to their patient); Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, 82 Colum. L. Rev. 1426, 1437 (1982) (“Most courts . . . have resorted to a confused tangle of legal theories, including invasion of privacy, implied term of contract, implied private cause of action in statute, and tortious breach of confidence, to make out a cause of action in such situations.”); see also Doe v. Roe, 93 Misc. 2d 201, 213 (N.Y. Sup. Ct. 1977) (in considering a claim against a physician for breach of confidence, concluding that “[w]hat label we affix to this wrong is unimportant,” and citing Prosser for the proposition that “there is no necessity whatever that a tort must have a name. New and nameless torts are being recognized constantly”); Smith v. Driscoll, 162 P. 572, 572 (Wash. 1917) (finding that it is not “necessary to pursue at length the inquiry of whether a cause of action lies in favor of a patient against a physician for wrongfully divulging confidential communications,” and holding that “it will be assumed that, for so palpable a wrong, the law provides a remedy”); Martin v. Baehler, Civ. A. No. 91C-11-008, 1993 WL 258843, at *2 (Del. Super. Ct. May 20, 1993) (in discussing claims for breach of confidentiality, noting that some courts “hold the nature of the cause of action sounds in contract, while the majority holds it lies in tort”); McCormick v. England, 494 S.E.2d 431, 436 (S.C. Ct. App. 1997) (“The jurisdictions that recognize the duty of confidentiality have relied on various theories for the cause of action, including invasion of privacy, breach of implied contract, medical malpractice, and breach of a fiduciary duty or a duty of confidentiality.”); Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. Ct. 2001) (in allowing a case to proceed as a claim of “breach of physician–patient confidentiality,” noting that patients “are aware of the promises of discretion contained in the Hippocratic Oath and must be able to rely on those promises”).

  108. See, e.g., Humphers v. First Interstate Bank of Or., 696 P.2d 527, 533 (Or. 1985) (holding that “unauthorized and unprivileged disclosure of confidential information obtained in a confidential relationship can give rise to tort damages” and that establishing such a cause of action does not require “judicial innovation”); Martin, 1993 WL 258843, at *2, *4–5 (in a case of first impression, holding that the breach of a physician’s duty of confidentiality “constitutes a tort and damages therefore may be recovered at law,” and concluding that the complaint at issue “states a cause of action in tort for breach of confidentiality”); Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523 (Ohio 1999) (“[A]n independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician–patient relationship.”); Alberts v. Devine, 479 N.E.2d 113, 120 (Mass. 1985) (“[A] duty of confidentiality arises from the physician–patient relationship and that a violation of that duty, resulting in damages, gives rise to a cause of action sounding in tort against the physician.”); McCormick, 494 S.E.2d at 437 (“[A]n actionable tort lies for a physician’s breach of the duty to maintain the confidences of his or her patient in the absence of a compelling public interest or other justification for the disclosure.”).

  109. See Restatement (Second) of Torts: Violation of Fiduciary Duty § 874, reporter’s note (Am. L. Inst. 1979) (“One breach of fiduciary duty that is more commonly regarded as giving rise to an action in tort is the disclosure of confidential information.”); 32 Am. Jur. Trials 105 § 3 (1985) (“The most conceptually sound rationale for the breach of the confidential relationship theory rests on the fiduciary character of the relationship between a doctor and a patient.” (emphasis omitted)); see also Tighe v. Ginsberg, 146 A.D.2d 268, 269 (N.Y. App. Div. 1989) (holding that a patient’s claim against a physician for breach of the fiduciary duty of confidentiality sounds in negligence, not medical malpractice); cf. Cause of Action, supra note 107, § 3 (noting that most patients seeking a remedy for confidentiality breaches rely on the “tort theory that the defendants breached a fiduciary duty” and some jurisdictions may not recognize such claims).

  110. See, e.g., Horne v. Patton, 287 So. 2d 824, 832 (Ala. 1973) (finding no cases rejecting “a cause of action for the breach of an implied contract of confidentiality on the part of the doctor,” and citing “public knowledge of the ethical standards of the medical profession” as constituting “sufficient justification for reasonable expectation on a patient’s part that the physician has promised to keep confidential all information given by the patient”); Doe, 93 Misc. 2d at 210–11 (finding that the formation of a physician–patient relationship establishes a contract “to retain in confidence matter[s] which should be kept in confidence,” which can be “enforced by injunction and compensated in damages”); Leger v. Spurlock, 589 So. 2d 40, 43 (La. Ct. App. 1991) (holding that “the cause of action for breach of patient–physician confidentiality is based in implied contract and tort” and that such a claim “alleges malpractice and is subject to the requirements of the Medical Malpractice Act”); cf. Geisberger v. Willuhn, 390 N.E.2d 945, 948 (Ill. App. Ct. 1979) (noting that the statutory protection for breach of a confidential relationship is “probably co-extensive” with “a cause of action for the breach of an implied contract not to disclose confidential information acquired through the physician-patient relationship”).

  111. See, e.g., Leger, 589 So. 2d at 43 (holding that “the cause of action for breach of patient–physician confidentiality is based in implied contract and tort” and that such a claim “alleges malpractice and is subject to the requirements of the Medical Malpractice Act”); Saur v. Probes, 476 N.W.2d 496, 497–98 (Mich. Ct. App. 1991) (reversing grant of defendant’s motion for summary judgment in a medical malpractice suit, and concluding that “a cause of action exists for a psychiatrist’s disclosure of privileged communications”); Berger v. Sonneland, 26 P.3d 257, 267–68 (Wash. 2001) (holding that a claim for breach of confidentiality can be brought under the state’s medical malpractice statute, but only if the disclosure is made in the context of “health care”). Contra Martin, 1993 WL 258843, at *4–5 (holding that breach of confidentiality is not encompassed within the Delaware medical malpractice statute).

  112. See, e.g., Judy E. Zelin, Physician’s Tort Liability for Unauthorized Disclosure of Confidential Information About Patient, 48 A.L.R.4th 668 § 7 (1986) (“In a few jurisdictions, the courts have held that liability for a physician’s unauthorized disclosure of confidential information about a patient cannot be based upon a breach of the confidential relationship of physician and patient, where the particular jurisdiction follows the common-law rule that neither patient nor physician has a privilege that a communication of one to the other not be disclosed to a third party, and has no statute providing for such a privilege.”); Geisberger, 390 N.E.2d at 946 (noting that Illinois common law does not recognize a privilege for confidential communication between a doctor and a patient but does provide statutory protections for some disclosures); Collins v. Howard, 156 F. Supp. 322, 324 (S.D. Ga. 1957) (holding that in the absence of a statute, “[t]here is no confidential relationship between doctor and patient or hospital and patient in Georgia”); Allen v. Smith, 368 S.E.2d 924, 928 (W. Va. 1988) (expressing “reluctan[ce] to recogniz[ing] a general cause of action for the unauthorized disclosure of medical records in the absence of conduct so outrageous as to shock the conscience”); Quarles v. Sutherland, 389 S.W.2d 249, 251 (Tenn. 1965) (holding that although “physicians and surgeons are required by the ethics of their profession to preserve the secrets of their patients . . . under the common law, applicable in this case, this ethical requirement is not enforceable by law”).

  113. Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 590, 592 (D.C. 1985).

  114. See, e.g., Horne, 287 So. 2d at 829 (in discussing public policy factors supporting a cause of action for breach of patient confidentiality, identifying as relevant the state medical licensing statute that authorizes professional discipline upon a doctor “who wilful[ly] betray[s] . . . a professional secret”, “the established ethical code of the medical profession itself [the Hippocratic Oath] unequivocally recognizes the confidential nature of the doctor–patient relationship,” and the AMA’s Principles of Medical Ethics); Martin, 1993 WL 258843, at *3 (in holding that an “actionable wrong lies for a physician’s breach of his or her duty to maintain confidences,” citing the Hippocratic Oath and the AMA’s Principles of Medical Ethics, as well as the state medical practice act which finds that a willful violation of confidentiality “constitutes unprofessional conduct by a medical doctor or surgeon”); Vassiliades, 492 A.2d at 591–92 (in adopting a cause of action for breach of a confidential relationship, citing the AMA Principles of Medical Ethics’s professional recognition “that the relationship between a physician and patient requires that ‘[t]he confidences . . . should be held as a trust and should never be revealed except when imperatively required by the laws of the state’” (quoting Principles of Medical Ethics of A.M.A., Ch. II, § 1 (1943)); MacDonald v. Clinger, 84 A.D.2d 482, 483, 485 (N.Y. App. Div. 1982) (in supporting an implied contract theory for breach of confidence, finding that “the confidentiality of the relationship is a cardinal rule of the medical profession, faithfully adhered to in most instances, and thus has come to be justifiably relied upon by patients seeking advice and treatment”); McCormick v. England, 494 S.E.2d 431, 435 (S.C. Ct. App. 1997) (in finding a tort cause of action for a physician’s breach of patient confidentiality, noting that “[t]he belief that physicians should respect the confidences revealed by their patients in the course of treatment is a concept that has its genesis in the Hippocratic Oath”); Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. Ct. 2001) (in allowing a case to proceed as a claim of “breach of physician–patient confidentiality,” noting that patients “are aware of the promises of discretion contained in the Hippocratic Oath and must be able to rely on those promises”); see also McIntosh v. Milano, 403 A.2d 500, 512 (N.J. Super. Ct. Law. Div. 1979) (discussing exceptional circumstances in which physicians are permitted to breach the duty of confidentiality and noting that state common law is “consonant with § 9 of the Principles of Medical Ethics”).

  115. See Dan B. Dobbs et al., The Law of Torts § 724 (2d ed. 2011).

  116. Id.; see also Restatement (Second) of Torts: Violation of Fiduciary Duty § 874 (Am. L. Inst. 1979) (“One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.”); Ronald E. Mallen, Legal Malpractice § 15:3 (2022 ed.) (“In defining the tort of legal malpractice, one approach is to include the fiduciary obligations within the standard of care.”).

  117. See infra notes 140–41 and accompanying text.

  118. See generally Tamar Frankel, Fiduciary Law, 71 Calif. L. Rev. 795, 800–01 (1983); Dobbs et al., supra note 115, §§ 696–697.

  119. Frankel, supra note 118, at 824 (“[M]uch of fiduciary law is designed to prevent the fiduciary from using delegated power to further interests other than those of the entrustor.”). In the medical context, the duty of loyalty is most often tested in situations where a physician has a financial (or other) conflict of interest that might affect their medical judgment—for example, as where physicians are incentivized by managed care organizations to limit costly diagnostic tests and treatments. See Sam F. Halabi, Against Fiduciary Utopianism: The Regulation of Physician Conflicts of Interest and Standards of Care, 11 U.C. Irvine L. Rev. 433, 445–47, 462 (2020) (discussing duties of loyalty in medicine, including conflicts of interest); Mark A. Hall, Law, Medicine, and Trust, 55 Stan. L. Rev. 463, 504 (2002) (“[M]ost courts have declined to allow suits for damages for breach of fiduciary duties based on financial incentives, even though courts recognize the obvious force that fiduciary principles have in doctor–patient relationships and that these principles are generally hostile to financial conflicts of interest.”).

  120. See 18B Am. Jur. 2d Corporations § 1469 (2022) (describing the duty of candor as being “encompassed within the duty of loyalty”); Kate Whitlock, Loyalty and Care: Separate but Equal Duties, DRI for Def., Apr. 2018, at 26 (describing fiduciary duties of disclosure and candor as “really just different iterations of the core duty of loyalty”); J. Robert Brown, Jr., The Regulation of Corporate Disclosure § 11.01 (3d ed. 2016) (“Early in the development of the doctrine, confusion existed over the precise source of the disclosure obligation. Some cases viewed the board’s duties as freestanding, separate from the other fiduciary obligations. Courts, however, have made clear that the duty of complete disclosure is a subset of both the duty of care and the duty of loyalty.”). In the medical context, the duty of candor encompasses the duty to secure a patient’s informed consent, Halabi, supra note 119, at 447, the duty to disclose financial conflicts of interest, id. at 447–48, and according to some, disclosure of other information about the physician that might impact the patients’ decision-making, Nadia N. Sawicki, Modernized Informed Consent: Expanding the Boundaries of Materiality, 2016 U. Ill. L. Rev. 821, 850–51 (2016).

  121. See Dobbs et al., supra note 115, § 696. The physician’s duty to maintain a patient’s confidentiality is recognized as being grounded in the fiduciary duty of loyalty. Halabi, supra note 119, at 440–41; Gracey v. Eaker, 837 So. 2d 348, 354 (Fla. 2002) (“These cases are also persuasive authority and support our conclusion that a psychotherapist who has created a fiduciary relationship with his client owes that client a duty of confidentiality, and that a breach of such duty is actionable in tort.” (footnote omitted)); see also Domako v. Rowe, 475 N.W.2d 30, 34 (Mich. 1991) (holding that the duty of confidentiality may be waived once a patient files a malpractice action and authorizes the release of medical information); Parris v. Limes, 277 P.3d 1259, 1265 n.3 (Okla. 2012) (“Oklahoma has long recognized that the relationship between a physician and patient is a fiduciary and confidential relationship.”).

  122. See Halabi, supra note 119, at 440. The fiduciary duty of care in the medical context overlaps significantly with the duty of care as understood in medical malpractice contexts. Professor Halabi describes the doctor’s fiduciary duty of care as including the “obligation to perform their professional activities carefully and competently, generally as judged by the prevailing standards of professional competence in the relevant field of medicine.” Id. at 449. He notes that while courts acknowledge the physician’s duty of care as being fiduciary in nature, these claims are “typically adjudicated as malpractice actions.” Id.

  123. See Frankel, supra note 118, at 829–30 (“Courts regulate fiduciaries by imposing a high standard of morality upon them. This moral theme is an important part of fiduciary law.”); id. at 829–32 (discussing morality as an element of fiduciary principles more generally). However, because the duty of candor/disclosure has special manifestations in the context of medical practice (informed consent), for the purposes of this Article I treat it separately.

  124. Halabi, supra note 119, at 437 (describing the doctor–patient relationship as “one of the storied fiduciary relationships in law”); Charity Scott, Doctors as Advocates, Lawyers as Healers, 29 Hamline J. Pub. L. & Pol’y, 331, 335, 337 (2008) (noting that “[t]he concept of the physician as a fiduciary for his patient has a long and honorable history in medical ethics,” and that this concept has become “well accepted” in U.S. law); Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 Am. J.L. & Med. 241, 242, 245–46 (1995) (noting that the “dominant metaphor in medical ethics and law today” is that of the physician as fiduciary, and describing how the physician–patient relationship closely resembles classic fiduciary relationships); Maxwell J. Mehlman, Why Physicians Are Fiduciaries for Their Patients, 12 Ind. Health L. Rev. 1, 2 (2015) (“The relationship between patients and physicians certainly seems to fit . . . [the] conditions [of a fiduciary relationship].”).

  125. Dayna Bowen Matthew, Implementing American Health Care Reform: The Fiduciary Imperative, 59 Buff. L. Rev. 715, 730 (2011) (“Current applications of fiduciary law are pervasive in the medical context and are firmly based on the well-established ethical responsibilities that providers historically owed to their patients.”); Rodwin, supra note 124, at 245–47 (discussing medical ethics as a basis for the fiduciary role); Mehlman, supra note 124, at 7–8 (citing the AMA Council on Ethical and Jud. Affairs, Code of Ethics, Principles of Medical Ethics).

  126. See Maxwell J. Mehlman, Can Law Save Medicine?, 36 J. Legal Med. 121, 138–39 (2015) (citing Crispell v. Dubois, 4 Barb. 393, 1848 WL 5096 (N.Y. Gen. Term 1848)).

  127. Mehlman, supra note 124, at 3–7.

  128. Id. at 22–23.

  129. Scott, supra note 124, at 338 n.10 (“Despite this broad legal and ethical consensus, some cases and commentary have challenged the characterization of the doctor–patient relationship as a fiduciary one.”); Marc A. Rodwin, Medicine, Money, and Morals: Physicians’ Conflicts of Interest 210 (1993) (noting that “courts apply fiduciary law principles to doctors” in only “a few situations,” describing those as “limited circumstances”); Rodwin, supra note 124, at 242, 246–47 (noting that “although doctors perform fiduciary-like roles and hold themselves out as fiduciaries in their ethical codes, the law holds doctors accountable as fiduciaries only in restricted situations,” such as those involving patient abandonment, confidentiality, informed consent, and disclosure of financial interests in the context of clinical research); Halabi, supra note 119, at 452 (“Despite the lofty rhetoric courts attach to the fiduciary relationship between physicians and patients, they have been largely reluctant to enforce fiduciary duties, per se, against physicians.”).

  130. Scott, supra note 124, at 339; see also Hall, supra note 119, at 490–91 (discussing the fact that “fiduciary law does not consist of an integrated body of concrete rules or precise doctrines that applies uniformly to all forms of fiduciary relationships”).

  131. Mehlman, supra note 124, at 10. In particular, Professor Mehlman challenges as “unsupported” Professor Marc Rodwin’s claims in Medicine, Money, and Morals regarding courts’ rejection of fiduciary duty claims. Id. at 18–20.

  132. Id. at 23.

  133. Neade v. Portes, 793 N.E.2d 496, 500 (Ill. 2000) (citations omitted).

  134. See Halabi, supra note 119, at 449–50 (“For attorneys, physicians, and many other fiduciaries, courts have equated breaches of the fiduciary duty of care with malpractice, imposing ordinary negligence and preponderance of the evidence standards when adjudicating claims by beneficiaries.”); Dobbs et al., supra note 115 (“In a number of states, where a legal malpractice claim and a breach of fiduciary duty claim are joined in the same case and are based on exactly the same underlying lawyer misconduct and seek the same damages, the latter will be dismissed as redundant.”); Hall, supra note 119, at 493 (noting that in cases of financial conflicts of interest, courts “have resisted efforts to craft legal theories based on fiduciary law that would circumvent conventional medical malpractice standards”); see also Mallen, supra note 116 (citing the same approach in cases of legal malpractice); Roy Ryden Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on the Legal Malpractice Puzzle, 47 SMU L. Rev. 235, 235 (1993) (citing the same approach in cases of legal malpractice, noting that many courts “refuse to recognize the distinctions and dichotomies between and among the actions, and conclude that regardless of how the cause is characterized it is essentially a tort action for malpractice”).

  135. Professor Halabi concludes that this may be because common law tort claims “often have advantageous features from the perspective of trial judges” as compared to claims for breach of fiduciary duty. Halabi, supra note 119, at 453.

  136. Neade, 739 N.E.2d at 500.

  137. Id.; see also D.A.B. v. Brown, 570 N.W.2d 168, 171–72 (Minn. Ct. App. 1997) (refusing to “ignore the requirements of medical malpractice law and recognize a new tort based on breach of fiduciary duty to cover the wrong perpetrated by a physician” with financial conflicts of interest); Hales v. Pittman, 576 P.2d 493, 497 (Ariz. 1978) (concluding that the doctor–patient relationship is a fiduciary one, but declining to “recognize a new cause of action based on breach of trust when an adequate remedy for this case already exists”); Garcia v. Coffman, 946 P.2d 216, 222–23 (N.M. Ct. App. 1997) (holding that a physician has a fiduciary duty “of full and fair disclosure” but that breach of this duty in the medical context constitutes a negligence cause of action); Kernke v. Menninger Clinic, Inc., 172 F. Supp. 2d 1347, 1354 (D. Kan. 2001) (refusing to allow a plaintiff to “‘creatively classify’ a claim as something other than one for medical malpractice if the substance of the claim concerns the physician-patient relationship”). But see Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 483 (Cal. 1990) (holding that a physician’s failure to disclose his economic interests in future research before securing consent to medical treatment could “properly be characterized [as] either [a] breach of a fiduciary duty . . . or, alternatively, as the performance of medical procedures without first having obtained the patient’s informed consent”).

  138. See, e.g., In re Odeh, 431 B.R. 807, 810, 812–13 (Bankr. N.D. Ill. 2010) (distinguishing between a medical malpractice claim for negligent treatment of cardiac arrest and a breach of fiduciary duty claim based on the defendant’s alteration of the plaintiff’s medical records to hide evidence of the malpractice).

  139. Mehlman, supra note 124, at 26–31, 44 n.92; Anderson & Steele, supra note 134, at 251–61; Halabi, supra note 119, at 453.

  140. Mehlman, supra note 124, at 30 (“For example, the physician may have made a mistake that was reasonable but that could have been avoided had the physician not acted out of self-interest. Alternatively, the physician may have deprived the patient of care that, while reasonable, would have been of even higher quality had the physician not acted self-interestedly.”).

  141. Id. at 22–23.

  142. Id. at 23; Mallen, supra note 116; see also Brown, 570 N.W.2d at 171 (“We decline to create a new cause of action simply to permit the putative class to avoid showing injury or to circumvent the legislatively mandated statute of limitations.”); Colton v. Dewey, 321 N.W.2d 913, 917 (Neb. 1982) (“[A]ny professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties is ‘malpractice’ and comes within the professional or malpractice statute of limitations.”).

  143. The Author’s research relied upon Westlaw searches of cases citing to ethics opinions of professional medical associations as well as the published version of the AMA’s Code of Medical Ethics, which is annotated with references to court cases that cite to the AMA Code or to Council on Ethical & Judicial Affairs (CEJA) Opinions.

  144. See infra Part IV.

  145. See infra Section IV.B; see also supra text accompanying notes 113–14 (regarding policy considerations in confidentiality cases); infra note 179.

  146. See infra Part IV.

  147. See, e.g., infra text accompanying note 152.

  148. See, e.g., infra text accompanying notes 161, 168. But see infra note 150 and accompanying text.

  149. See supra notes 109–10 and accompanying text.

  150. Note, however, that the cases cited below are ones where the plaintiff has explicitly pled an ethical violation as the basis for legal recovery. There are, of course, other cases involving similar conduct (for example, sexual conduct by physicians) where courts have been willing to grant recovery, but the plaintiff has not specifically argued that recovery should be premised on breach of an ethical duty. See Elizabeth F. Kuniholm & Kim Church, 4 Litigating Tort Cases § 54:41 (2021) (citing cases where plaintiffs have recovered against sexually abusive physicians on theories including breach of fiduciary duty).

  151. Dennis v. Allison, 678 S.W.2d 511, 514–15 (Tex. App.—El Paso 1984, writ granted) aff’d, 698 S.W.2d 94, 96 (Tex. 1985).

  152. Dennis, 678 S.W.2d at 512.

  153. Id. at 512–13.

  154. Id. at 513.

  155. Id.

  156. Dennis, 698 S.W.2d at 96 (“It is not necessary to impose an implied warranty theory as a matter of public policy because the plaintiff patient has adequate remedies to redress wrongs committed during treatment.”). The plaintiff in this case had also brought a claim for assault but, for reasons unknown, only submitted the implied warranty claim to the jury. Id. at 94.

  157. Id. at 95–96. (“Although the question has not been addressed in Texas, other states recognize that a cause of action for medical malpractice or assault and battery are appropriate remedies for a plaintiff patient who has been sexually assaulted or beaten by a physician or psychiatrist.”).

  158. This case is one of several highlighted throughout this Article where courts have rejected supposedly “novel” causes of action on the grounds that the plaintiff neglected to pursue more traditional causes of action that would potentially be applicable to their circumstances. Id.; see, e.g., Evans v. Rite Aid Corp., 478 S.E.2d 846, 848 (S.C. 1996) (rejecting a cause of action for breach of physician–patient confidentiality on the grounds that it is “unnecessary to find a duty of confidentiality when there presently exist other causes of action that address the harm,” such as defamation and professional negligence); Neade v. Portes, 739 N.E.2d 496, 503 (Ill. 2000) (“We need not recognize a new cause of action for breach of fiduciary duty when a traditional medical negligence claim sufficiently addresses the same alleged misconduct.”). That said, were the plaintiffs to bring more traditional claims, it is even less likely that courts would consider arguments grounded in professional ethics, rather than traditional common law doctrine.

  159. Hasbun v. United States, 941 F. Supp. 2d 1011, 1011, 1013–14 (N.D. Ill. 2013).

  160. Id. at 1013. Because the physician was considered an employee of the United States under the Federal Tort Claims Act, her case was removed to federal court, and the United States was substituted as a party to the suit instead of the physician. The United States was also substituted as a party in lieu of one of the institutional defendants, PCC Community Wellness Center. Id.

  161. Specifically, Opinion 8.21, recommending institutional protocols for the use of chaperones during physical examinations. Id. at 1015–17.

  162. Id. at 1017.

  163. Id. (quoting Neade v. Portes, 710 N.E.2d 418, 427 (Ill. App. Ct. 1999)). In that case, the court had rejected the notion that ethical standards might be dispositive as to duty or standard of care but acknowledged that they would be “relevant to determining whether a physician has breached his standard of care and certainly can form the basis of an expert’s opinion that a physician has breached the standard of care.” Id.

  164. The negligent supervision claim had originally been dismissed without prejudice with leave to amend, but the claim was not included in an Amended Complaint. Id. at 1015–16. The malpractice claim was dismissed on the grounds that it was “not based on Dr. Tong’s breach of the standard of care in providing medical treatment, but instead, [was] based on Dr. Tong’s alleged offensive sexual assault and battery.” Id. at 1016.

  165. Id. at 1017. One could argue, of course, that this is a failure of the FTCA, rather than of the tort system at large. Were it not for the FTCA, the plaintiff could have pursued an individual cause of action against the physician himself. Regardless of the reason, however, this case demonstrates a gap in tort law’s ability to grant recovery for undisputed harms (even when complemented by statutory law).

  166. Several courts note, however, that although ethical standards do not establish a duty or dispositively set a standard of care, they can help illuminate the standard of care where the law already recognizes the existence of a duty. See infra Section III.B.2.

  167. Evans v. Rite Aid Corp., 478 S.E.2d 846, 847 (S.C. 1996).

  168. Id. at 847–48.

  169. Id. at 848. The court noted that it was unnecessary to establish a common law duty of confidentiality, because the plaintiff’s harms could be addressed by other causes of action, like defamation or professional negligence (on the grounds that “maintaining customer information confidential may well be part of the general standard of care of the professional pharmacist,” albeit not an independent duty). Id.

  170. Stanley v. McCarver, 92 P.3d 849, 850–51 (Ariz. 2004), aff’g in part, vacating in part 63 P.3d 1076 (Ariz. Ct. App. 2003). The issues on appeal in this case were whether a duty of care existed despite a lack of a traditional doctor–patient relationship and if such a duty existed, what the standard of care was. The plaintiff relied on the AMA Ethical Opinion in arguing that the radiologist, despite having no direct contact with the patient, owed him a duty of care. Id. at 851, 854.

  171. Id. at 854.

  172. Id.

  173. Id.

  174. Id. at 854–55. In a footnote, the court noted that while “rules of professional conduct may provide evidence of how a professional would act, they do not create a duty or establish a standard of care as a matter of law. . . . We continue to believe, however, that while such rules may illuminate the standard of care, they do not serve as a basis on which to impose a duty.” Id. at 854 n.6.

  175. Phelps v. deMello, No. 4:07CV366, 2007 WL 1063567, at *1 (E.D. Mo. Apr. 9, 2007).

  176. Principle II states that “[a] physician shall uphold the standards of professionalism . . . and strive to report physicians deficient . . . in competence . . . .” Id. at *3.

  177. Id.

  178. See, e.g., Smith v. Radecki, 238 P.3d 111, 115–16 (Alaska 2010) (assessing whether a malpractice claim could be brought against an independent medical examiner (IME) in the absence of a traditional physician–patient relationship, rejecting plaintiff’s argument that AMA ethical guidelines impose duties of care on IMEs, describing AMA guidelines as “a non-binding code for ethical behavior by member physicians,” and finding no authority to support the argument “that these guidelines bear on the scope of IME physicians’ legal liability”); Korper v. Weinstein, 783 N.E.2d 877, 881–82 (Mass. App. Ct. 2003) (dismissing patient’s claims for damages against a physician with whom she had a consensual sexual relationship, holding that “violations of medical ethics do not, however, without more, establish legal liability for damages” on fiduciary duty grounds, and concluding that violation of “a professional ethical rule” set by a licensing statute is not a basis for liability); Bryson v. Tillinghast, 749 P.2d 110, 113–14 (Okla. 1988) (dismissing patient’s claim that physician who disclosed information about him to the police breached a duty of confidentiality established by the Hippocratic Oath and the Principles of Medical Ethics, noting that “ethical standards are aspirational in nature and not enforceable by law,” and reasoning that even if that was not the case there was no evidence of breach); Hartsell ex rel. Upton v. Fort Sanders Reg’l Med. Ctr., 905 S.W.2d 944, 950 (Tenn. Ct. App. 1995) (affirming trial court’s exclusion of evidence regarding the AMA’s ethical standards as harmless error, noting that “ethical opinions are not the standard of care in Tennessee”).

  179. See, e.g., Reed v. Bojarski, 764 A.2d 433, 443–45 (N.J. 2001) (holding that a physician retained to perform a pre-employment physical owes a duty of reasonable care to his patients and that the finding of such a duty is supported by common law principles, medical board regulations, and professional ethics opinions); Culbertson v. Mernitz, 602 N.E.2d 98, 103–04 (Ind. 1992) (relying on caselaw to conclude that the “reasonably prudent physician” standard applies to informed consent cases, and citing AMA ethics opinions in support of this conclusion); see also Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 796–98 (N.D. Ohio 1965) (holding that even in the absence of binding precedent, public policy supports a finding that an insurer who induces a doctor to divulge confidential information about a patient may be liable in damages, and citing medical codes of ethics, a privileged communications statute, and a medical licensing statute as supporting that policy perspective); Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 483, 497, 515 (Cal. 1990) (finding common law support for plaintiff’s fiduciary duty and informed consent claims without reference to principles of medical ethics, despite a concurrence and dissent citing such principles).

  180. Ketchup v. Howard, 543 S.E.2d 371, 378–79 (Ga. Ct. App. 2000) (holding that because the medical standard of care is determined by the medical profession, an expert’s conclusion that informed consent is required by professional ethics opinions can ground a cause of action for informed consent), overruled by Blotner v. Doreika, 678 S.E.2d 80 (Ga. 2009).

  181. That said, some courts recognize that they may be relevant evidence in a professional negligence action. Restatement (Third) of the Law Governing Lawyers § 52 cmt. f (Am. L. Inst. 2000) (“[P]roof of violation of a professional rule does not by itself give rise to a cause of action or, by itself, make out a violation of the applicable duty of care.”); see also John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 Rutgers L. Rev. 101, 116–17 (1995); The Evidentiary Use of the Ethics Codes in Legal Malpractice: Erasing a Double Standard, 109 Harv. L. Rev. 1102, 1108 (1996) [hereinafter The Evidentiary Use of the Ethics Codes]; Charles W. Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. Rev. 281, 285 (1979); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 404–05, 407 (Tenn. 1991) (holding that the Code of Professional Responsibility “does not set the standard of care upon which an action for negligence can be based,” and citing Alabama, Georgia, and Texas caselaw to explain that allegations that an attorney violated ethical guidelines do not form a basis for liability or set a standard of care but merely provide guidance or inspiration as to an attorney’s ethical obligations).

  182. See, e.g., Bala v. Powers Ferry Psych. Assocs., 491 S.E.2d 380, 381 (Ga. Ct. App. 1997) (citing Davis v. Findley, 422 S.E.2d 859 (Ga. 1992)).

  183. Restatement (Third) of the Law Governing Lawyers § 52 cmt. f (Am. L. Inst. 2000) (citing cases); Lazy Seven Coal Sales, Inc., 813 S.W.2d at 404–05 (noting that the Code of Professional Conduct for lawyers does not form a basis for civil liability but serves only as a relevant guide in forming the standard of care); E. River Sav. Bank v. Steele, 311 S.E.2d 189, 191–92 (Ga. Ct. App. 1983) (reversing a denial for summary judgment where a plaintiff’s claim for intentional infliction of emotional distress hinged on the Code of Professional Responsibility).

  184. See supra Section III.A.2.

  185. See supra notes 181–82 and accompanying text.

  186. Stanley v. McCarver, 92 P.3d 849, 854 n.6 (Ariz. 2004), aff’g in part, vacating in part 63 P.3d 1076 (Ariz. Ct. App. 2003).

  187. Evans v. Rite Aid Corp., 478 S.E.2d 846, 848 (S.C. 1996). The court noted that it was unnecessary to find such a duty, because the plaintiff’s harms could be addressed by other causes of action, like defamation or professional negligence (on the basis that the general standard of care for pharmacists may include a duty to keep customer information confidential). Id.

  188. Bala v. Powers Ferry Psych. Assocs., 491 S.E.2d 380, 381 (Ga. Ct. App. 1997) (citing Davis v. Findley, 422 S.E.2d 859 (Ga. 1992)); Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 453 S.E.2d 719, 720 (Ga. 1995).

  189. Bala, 491 S.E.2d at 381 (“Given a liberal reading, as required, we conclude that [the expert’s] statement could be construed as expressing an opinion that Friedman’s disclosure of confidential information concerning Bala violated the standard of care governing all psychologists as memorialized by that profession’s ethical code of conduct. This is especially true in light of the fact that the Supreme Court of this state has recognized that professional ethical standards constitute evidence of a common law duty of care so long as they are intended to protect a person in the position of the alleged injured party or are specifically addressed to the particular harm suffered by that party, as is the case here.”).

  190. Outside the tort context, in a criminal case where a jury found that a physician’s actions were outside the scope of appropriate medical practice and that he had criminal intent, the court relied on evidence regarding (among other things) professional ethics standards to conclude that the jury’s decision was not supported by the evidence. State v. Naramore, 965 P.2d 211, 213–15, 223 (Kan. Ct. App. 1998).

  191. Mazza v. Huffaker, 300 S.E.2d 833, 842 (N.C. Ct. App. 1983) (affirming judgment against defendant psychiatrist who was found to have had a sexual relationship with his patient’s wife); MacClements v. Lafone, 408 S.E.2d 878, 882–83 (N.C. Ct. App. 1991) (affirming judgment against defendant therapist who was found to have had a sexual relationship with his patient).

  192. Mazza, 300 S.E.2d at 842.

  193. See Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 590 (D.C. 1985) (citing authorities where public policy has been a primary reason for courts’ acceptance of a claim for breach of confidentiality).

  194. See supra note 114 and accompanying text.

  195. See supra note 114 and accompanying text.

  196. Neade v. Portes, 739 N.E.2d 496, 498–99 (Ill. 2000).

  197. Id. at 499.

  198. Id. at 499, 502 (“Pursuant to the contract between Dr. Portes, Primary Care and Chicago HMO, any portion of the Medical Incentive Fund that was not used for referrals or outside tests would be divided at the end of each year between Primary Care’s full time physicians and Chicago HMO, with the physicians receiving 60% of the remaining money and Chicago HMO receiving 40%. If the Medical Incentive Fund was exhausted prior to the end of the year, Dr. Portes and his group would be required to fund any additional consultant fees and outside tests.”).

  199. The fiduciary duty claim alleged that the defendant physician “had a fiduciary duty to act in good faith and in the best interest of Mr. Neade, and that he breached that duty by refusing to authorize further testing, by refusing to refer Mr. Neade to a specialist and by refusing to disclose to the Neades Dr. Portes’ financial relationship” with the HMO, as well as by “entering into a contract with Chicago HMO that put his financial well-being in direct conflict with Mr. Neade’s physical well-being.” Id. at 499. In support of this claim, the plaintiff cited AMA Council on Ethical and Judicial Affairs Opinion 8.132, “Referral of Patients: Disclosure of Limitations.” Id. at 504.

  200. Id. at 499–500.

  201. Id. at 499.

  202. Id. at 499–500.

  203. Id. at 506.

  204. Id. at 499–500.

  205. AMA Council on Ethical and Judicial Affairs, Opinion 8.132 states that:

    Physicians must assure disclosure of any financial inducements that may tend to limit the diagnostic and therapeutic alternatives that are offered to patients or that may tend to limit patients’ overall access to care. Physicians may satisfy this obligation by assuring that the managed care plan makes adequate disclosure to patients enrolled in the plan.

    Id. at 504.

  206. Id. at 499.

  207. Id. at 505–06.

  208. Id. at 505. The Supreme Court of Illinois noted that while “Illinois courts have never addressed the issue of whether a plaintiff can state a cause of action for breach of fiduciary duty against a physician,” they have explicitly rejected fiduciary duty claims against attorneys where the “operative facts” are duplicative of a malpractice claim. Id. at 500.

  209. Id. at 502–03.

  210. Id. at 503. Several commentators, including myself, have challenged the idea that fiduciary duty claims (including those grounded in ethical breaches) are duplicative of malpractice claims. Professor Mehlman explicitly takes this perspective, noting that a fiduciary duty claim “deals with whether or not the physician acted loyally, while [malpractice] deals with whether the physician acted with due care.” Mehlman, supra note 124, at 27. There are other differences as well, Mehlman notes—the burden of proof in fiduciary duty conflict of interest claims is shifted to the defendant to prove they acted loyally, and the remedies are different (compensation for malpractice; constructive trust, specific performance, and punitive damages for fiduciary duty). Id. at 28–29. It is entirely possible, according to Mehlman, for a physician to breach a fiduciary duty “even if the care that they provided meets the standard of care for negligence.” Id. at 30 (“For example, the physician may have made a mistake that was reasonable but that could have been avoided had the physician not acted out of self-interest. Alternatively, the physician may have deprived the patient of care that, while reasonable, would have been of even higher quality had the physician not acted self-interestedly.”).

  211. Macy v. Blatchford, 8 P.3d 204, 206–08 (Or. 2000). The defendant gynecologist treated the plaintiff for pelvic pain and performed several surgeries. The plaintiff argued that the defendant negligently stapled her ureter, did not identify that the stapled ureter was the cause of her pain, negligently recommended earlier surgeries, and failed to obtain informed consent for that surgery. She later moved to amend her complaint to add a claim that “defendant had been negligent in continuing his physician–patient relationship with Macy after entering into a personal, sexual relationship with her.” Id.

  212. Id. at 207.

  213. Id.

  214. Id. at 208.

  215. The subjective state of mind of the defendant (however unethical or wrong) bears no relation to the objective standard of care on the physician. If despite the clouded judgment, the physician acted according to the standard of care, then there is no liability. Id. at 209.

  216. Id. at 208.

  217. EMTALA was enacted in 1986. EMTALA Fact Sheet, Am. Coll. Emergency Physicians, https://www.acep.org/life-as-a-physician/ethics--legal/emtala/emtala-fact-sheet/ [https://perma.cc/XY6P-SHXL] (last visited Apr. 2, 2022).

  218. Hiser v. Randolph, 617 P.2d 774, 776–77 (Ariz. Ct. App. 1980), disapproved of by Thompson v. Sun City Cmty. Hosp., Inc., 688 P.2d 605 (Ariz. 1984).

  219. Id. at 778.

  220. See also Hartsell ex rel. Upton v. Fort Sanders Reg’l Med. Ctr., 905 S.W.2d 944, 949–51 (Tenn. App. 1995) (affirming trial court’s exclusion of evidence regarding AMA rulings as harmless error despite the fact that the defendant–physician in that case had “contractually agreed to abide by those rulings”).

  221. That said, some state medical licensing statutes permit disciplinary action to be taken on the grounds of a physician’s violation of ethical standards promulgated by a professional association. See, e.g., Pons v. Ohio State Med. Bd., 614 N.E.2d 748, 752 (Ohio 1993) (citing R.C. 4731.22(B)(14) and (15)).

  222. See, e.g., Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976) (“[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.”).

  223. See, e.g., Katz, supra note 96, at 2–3 (describing that judicial decision-making in the area of informed consent was not based on the medical profession’s customary practice, and was in fact a “radical break with medical practices . . . [for] more than two thousand years of recorded medical history”).

  224. See David T. Stern & Maxine Papadakis, The Developing Physician—Becoming a Professional, 355 New Eng. J. Med. 1794, 1795 (2006) (describing the development of ethics education in medical schools since the 1970s); Tom Beauchamp & James Childress, Principles of Biomedical Ethics: Marking Its Fortieth Anniversary, 19 Am J. Biomedical Ethics 9, 9, 11 (2019) (describing their foundational volume as establishing a “common set of ethical principles for bioethical discourse and practice,” and noting its significant impact in the fields of both clinical and research ethics); Alexander Limentani, The Role of Ethical Principles in Health Care and the Implications for Ethical Codes, 25 J. Med. Ethics 394, 397 (1999) (describing ethical principles and codes as “represent[ing] concepts and values that can set the general ethical character and approach for health care”); Sheheen E. Lakhan et al., Time for a Unified Approach to Medical Ethics, Phil. Ethics & Humans. Med., Sept. 2009, at 1, 4 (noting that “[w]ithin the field of ethics certain principles have reached a consensus of importance,” and recommending standardized incorporation of these concepts into the medical curriculum in order to “provide a consistent framework of knowledge for practitioners”).

  225. See supra Section III.B.2.

  226. Dobbs et al., supra note 115, § 251.

  227. Id. § 283.

  228. Id.

  229. See supra Part III.

  230. See supra Section III.A.2.

  231. Dobbs et al., supra note 115, § 251.

  232. Sheley, supra note 72.

  233. Id. at 63.

  234. See, e.g., Alan Meisel, A ‘‘Dignitary Tort’’ as a Bridge Between the Idea of Informed Consent and the Law of Informed Consent, 16 Law Med. & Health Care 210, 216 (1988); Alan J. Weisbard, Informed Consent: The Law’s Uneasy Compromise with Ethical Theory, 65 Neb. L. Rev. 749, 763 (1986).

  235. Dobbs et al., supra note 115, § 390; Colleen K. Sanson, Health Care Provider’s Wrongful Disclosure of Confidential Medical Information, 116 Am. Jur. Proof Facts 3d 1 § 18.

  236. See supra note 72.

  237. Dov Fox, for example, criticizes modern tort law for failing to compensate even egregious conduct that violates reproductive autonomy because “existing causes of action lack the narratives required” for plaintiffs to be heard in court. Dov Fox, Reproductive Negligence, 117 Colum. L. Rev. 149, 155, 157 (2017); see also Eibshutz, supra note 57, at 920 (arguing that that the crime of physicians deceiving patients by using their own sperm during artificial insemination “arises from the lack of proper characterization of the doctor’s behavior. Prosecutors don’t know what to qualify this crime as—is it assault, fraud, battery, a civil tort, a breach of contract? The list of possibilities is seemingly endless and yet the crime may not perfectly fit the elements of any of those offenses.”). The common law requirement of bodily harm in such cases can be extrapolated broadly to cover harms caused by unethical conduct that similarly do not result in physical injury and could be overcome by a cause of action for ethical malpractice which recognizes a broader set of harms.

  238. The Evidentiary Use of the Ethics Codes, supra note 181, at 1104. But see Marc R. Greenough, The Inadmissibility of Professional Ethical Standards in Legal Malpractice Actions After Hizey v. Carpenter, 68 Wash. L. Rev. 395, 398–99 (1993) (“Courts take four different approaches to admitting professional ethical standards as evidence of an attorney’s duty of care in legal malpractice actions. First, some courts hold that professional ethical standards conclusively establish the duty of care and that any violation constitutes negligence per se. Second, a minority of courts finds that a professional ethical violation establishes a rebuttable presumption of legal malpractice. Third, a large majority of courts treats professional ethical standards as evidence of the common law duty of care. Finally, one court has found professional ethical standards inadmissible as evidence of an attorney’s duty of care.”).

  239. Model Rules of Pro. Conduct pmbl. (Am. Bar Ass’n 1983).

  240. Ann Peters, The Model Rules as a Guide for Legal Malpractice, 6 Geo. J. Legal Ethics 609, 611, 613–15, 617 (1993) (citing the Model Rules of Professional Responsibility, noting that the legislative history of the Model Rules “reflects the opposition to the use of attorney ethics codes as the basis for civil liability” and that most jurisdictions that have adopted the Model Rules have retained this disclaimer).

  241. See, e.g., Hizey v. Carpenter, 830 P.2d 646, 650–51, 653 (Wash. 1992) (describing caselaw concluding that “breach of an ethics rule provides only a public, e.g., disciplinary, remedy and not a private remedy,” and reaching the same conclusion); Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 453 S.E.2d 719, 720 (Ga. 1995) (holding that the Code of Professional Responsibility “cannot provide the sole basis for the standard of care applied in a legal malpractice action” because it only provides sanctions for professional misconduct).

  242. See, e.g., Wolfram, supra note 181, at 283 (identifying specific provisions of the Code that “may be of potential utility in private party litigation”); Peters, supra note 240, at 610 (arguing for greater reliance on the Model Rules and state ethics rules in legal malpractice actions as a way to “improve the profession’s credibility in the public eye”); The Evidentiary Use of the Ethics Codes, supra note 181, at 119 (challenging courts’ reluctance to use professional codes in malpractice actions and arguing for their expanded use).

  243. Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline, 13 J. Health Care L. & Pol’y 285, 290, 295 (2010).

  244. Dobbs et al., supra note 115, § 13.

  245. See supra note 79 and accompanying text.

  246. See supra Section III.B.2; see also Restatement (Third) of the Law Governing Lawyers § 52, cmt. f (Am. L. Inst. 2000) (noting that this provision in the Model Rules “does not comment on, and is not inconsistent with, the use of rules as evidence of violation of an existing duty of care”).

  247. Michelle M. Mello, Of Swords and Shields: The Role of Clinical Practice Guidelines in Medical Malpractice Litigation, 149 U. Pa. L. Rev. 645, 649 (2001); Maxwell J. Mehlman, Medical Practice Guidelines as Malpractice Safe Harbors: Illusion or Deceit?, 40 J.L. Med. & Ethics 286, 286–300 (2012); Marilyn J. Field & Kathleen N. Lohr, Clinical Practice Guidelines: Directions for a New Program 27, 56 (1990), http://www.ncbi.nlm.nih.gov/books/NBK235751/; Chris Taylor, The Use of Clinical Practice Guidelines in Determining Standard of Care, 35 J. Legal Med. 273, 273–74 (2014).

  248. Taylor, supra note 247, at 274.

  249. See generally Michael D. Seidman et al., Clinical Practice Guideline: Allergic Rhinitis, 152 Am. Acad. Otolaryngology–Head & Neck Surgery Found. S1 (2015); Am. Urological Ass’n, American Urological Association Guideline: Management of Benign Prostatic Hyperplasia (BPH) (2010); Clinical Efficacy of Probiotics: Review of the Evidence with Focus on Children, 43 J. Pediatric Gastroenterology & Nutrition 550 (2006).

  250. Mello, supra note 247, at 650–52.

  251. Field & Lohr, supra note 247, at 15–16.

  252. Mello, supra note 247, at 652.

  253. See generally Mello, supra note 247, at 648, 668 (describing three models of tort reform that use CPGs in medical malpractice suits as the basis for a legal standard of care or an affirmative defense); Mehlman, supra note 247, at 286, 298–99 (proposing use of medical practice guidelines as establishing a standard of care to eliminate conflicting expert testimony, and analyzing the likely consequences of doing so); Mark A. Hall, The Defensive Effect of Medical Practice Policies in Malpractice Litigation, Law & Contemp. Probs., Spring 1991, at 119, 130–32, 140–42 (1991) (explaining the favorable outcome and judicial/evidentiary drawbacks of using CPGs as a basis for establishing custom in medical malpractice cases); Clark C. Havighurst, Practice Guidelines as Legal Standards Governing Physician Liability, Law & Contemp. Probs., Spring 1991, at 87, 87–88, 100, 103, 117 (1991) (analyzing the use of CPGs as a standard of care, and suggesting that a model with competing guidelines may allow health care system participants to choose what standard of care should apply); Josephine Y. King, Practice Guidelines & Medical Malpractice Litigation, 16 Med. & L. 29, 35–36 (1996) (analyzing the use of CPGs in medical malpractice litigation and the shortcomings of doing so); Patricia R. Recupero, Clinical Practice Guidelines as Learned Treatises: Understanding Their Use as Evidence in the Courtroom, 36 J. Am. Acad. Psychiatry & L. 290, 292–93 (2008) (exploring how CPGs should be used in litigation and with respect to expert witnesses).

  254. See generally King, supra note 253 (discussing the expectation that CPGs be used to exculpate physicians from liability and the desire of plaintiff patients to use CPGs as evidence).

  255. Recupero, supra note 253, at 293–94 (describing how CPGs were used in defining the medical standard of care during trial in Moore v. Baker, Washington v. Washington Hospital Center, and Price v. Cleveland Clinic Foundation); Taylor, supra note 247, at 281–83 (analyzing cases where CPGs were introduced into evidence such as Jilek v. Stockson and Hinlicky v. Dreyfuss, but also those where they were excluded at trial such as Greathouse v. Rhodes & Duge).

  256. Some of these statutes were extremely one-sided, establishing that compliance with CPGs conclusively immunizes defendants from tort liability but not permitting injured plaintiffs to rely on CPGs. Mehlman, supra note 247, at 286–87 (citing a 1990 Maine demonstration project and Minnesota legislation establishing one-sided use of CPGs as a defense); Jennifer Begel, Maine Physician Practice Guidelines: Implications for Medical Malpractice Litigation, 47 Me. L. Rev. 69, 78–82 (1995) (analyzing Maine’s statute concerning the use of CPGs as an affirmative defense, and critiquing the statutory scheme as it applies to procedural aspects of Maine’s laws); Me. Rev. Stat. Ann. tit. 24, §§ 2971–979 (1990) (repealed 1999); Minn. Stat. § 62J.34 (1994) (repealed 1995); Or. Rev. Stat. Ann. § 413.011(1)(e) (2011); see also Amy Widman, Liability and the Health Care Bill: An Alternative Perspective, 1 Cal. L. Rev. Cir. 57, 58, 65 (2010) (discussing a proposal in PPACA that doctors who follow CPGs should have presumptive immunity from malpractice liability).

  257. See, e.g., Mello, supra note 247, at 666–67, 672, 702 (arguing that both the exculpatory and inculpatory use of CPGs in tort litigation is deeply problematic, and recommending that the use of CPGs in malpractice cases be restricted to expert reliance); Mehlman, supra note 247, at 289, 298 (critiquing use of CPGs as subjecting medical professionals to only one way of treating patients instead of using their own expertise, and addressing the likely consequence that a guideline meant only for defensive use may end up being used by the plaintiff as well); Hall, supra note 253, at 131–34 (arguing that using CPGs is problematic because precedents treat offensive and defensive use of guidelines differently and the rules of evidence pose issues of presenting the guidelines to the jury). Some scholars argue that the use of CPGs in this fashion is unconstitutional. King, supra note 253, at 38 (arguing that disallowing the inculpatory use of CPGs, as in Maine, violates equal protection and due process); Shuman, supra note 226, at 99, 106 (noting that incorporating CPGs in litigation raises constitutional questions which may ultimately discourage defense attorneys from using them); Begel, supra note 256, at 88–89 (arguing that a constitutional violation could result because legislation proscribing the use of CPGs could usurp judicial function and may burden plaintiffs more than defendants). But see Mello, supra note 247, at 705–07 (disagreeing with Begel, and arguing that an equal protection challenge would be unsuccessful because the relevant law would likely survive rational basis scrutiny).

  258. Federal Rule of Evidence 803(18) allows learned treatises to be used during expert witness testimony to establish a standard of care. Mello, supra note 247, at 663; Recupero, supra note 253, at 292 (acknowledging the use of CPGs in the courtroom today, but noting that their admissibility and use varies depending on the type of case and intended use).

  259. See, e.g., Frakes v. Cardiology Consultants P.C., No. 01-A-01-9702-CV-00069, 1997 WL 536949, at *6 (Tenn. Ct. App. 1997) (finding that CPGs could be admitted as substantive evidence, as long as they were established as reliable authority and not just to impeach the expert witness’s credibility); Hinlicky v. Dreyfuss, 848 N.E.2d 1285, 1291 (N.Y. 2006) (finding that CPGs provided by the expert witness were admissible as an exception to hearsay because they were merely an illustration of the physician’s thought process).

  260. Mello, supra note 247, at 677–83 (arguing that certain CPGs may only be intended to present an option for treatment instead of a custom, that new standards take time to actually become widely adopted by the medical community, and that compliance with CPGs may not be great enough to justify using them as custom); Mehlman, supra note 247, at 296 (questioning whether a CPG intended to indicate “best practices” is sufficient to delineate a standard of care); see also Ray Fish & Melvin Ehrhardt, The Standard of Care, 12 J. Emergency Med. 545, 547 (1994) (“The fact that a proposed standard has been published by a credible medical society probably does indicate that to follow the proposed standard would be acceptable practice. . . . However, published recommendations are not generally regarded as standards of care until they are widely accepted by physicians.”).

  261. Mello, supra note 247, at 680–82; see also Wolfram, supra note 181, at 284 (in the context of legal practice, identifying ethical norms as aspirational, indicating behavior that is preferred but not mandatory).

  262. Mehlman, supra note 247, at 297 (asserting that certain CPGs should not be used, as they are issued by private insurers and intended to address cost concerns).

  263. Charity Scott, Why Law Prevades Medicine: An Essay on Ethics in Health Care, 14 Notre Dame J.L. Ethics & Pub. Pol’y 245, 259–60 (2000); Dena S. Davis, The Ambiguous Effects of Tort Law on Bioethics: The Case of Doctor–Patient Communication, 21 J. Clinical Ethics 264, 267–70 (2010).

  264. See infra Section V.C.

  265. See, e.g., Valerie Gutmann Koch, Eliminating Liability for Lack of Informed Consent to Medical Treatment, 53 U. Rich. L. Rev. 1211, 1226–39 (2018) (identifying criticisms of modern informed consent doctrine, and considering the possibility that abandoning the common law informed consent cause of action might be more beneficial to patients); Davis, supra note 263, at 264 (arguing that bioethics has been “stunted by the influence of legal thinking, and by an unstated, often unexamined, subservience to legal norms”); id. at 270 (arguing that “what is appropriate for law is not necessarily appropriate for ethics, or for norms of professional practice” and that ethical norms “should be ‘thicker’ and more demanding than the minimalist requirements of the law”); Scott, supra note 263, at 246 (“Paradoxically and unfortunately, when law becomes the primary enforcer of ethical views, its power can create problems, or pitfalls, for continued ethical reflection on the very issues that it was called upon to address in the first place.”); O. O’Neill, Some Limits of Informed Consent, 29 J. Med. Ethics 4, 4–6 (2003) (explaining that although informed consent may seem to offer patients autonomy, this hinges on several factors including the definition of autonomy and the term “informed consent” itself); Hon. Justice M.D. Kirby, Informed Consent: What Does It Mean?, 9 J. Med. Ethics 69, 72–73 (1983) (analyzing the drawbacks of executing informed consent, such as ascertaining exactly what a patient should know before undergoing treatment and the arbitrary nature of informed consent); Jay Katz, Informed Consent—A Fairy Tale?—Law’s Vision, 39 U. Pitt. L. Rev. 137, 139 (1977) (arguing that the purpose of the common law of informed consent—the promotion of patients’ decisional autonomy—has “been severely compromised from the beginning” and that “the doctrine of informed consent remains a symbol which despite widespread currency has had little impact on patients’ decision-making”).

  266. See, e.g., Koch, supra note 265, at 1224–27.

  267. See, e.g., Melissa Bekelja Wanzer et al., Enhancing the “Informed” in Informed Consent: A Pilot Test of a Multimedia Presentation, 25 Health Commc’n 365, 366 (2010) (noting that informed consent is limited due to issues of health literacy, and understanding that the average consent form requires sixteen years of education); Daniel Purcaru et al., Informed Consent: How Much Awareness Is There?, PLOS One (Oct. 2014)，https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0110139 [https://perma.cc/EPK5-SSLN] (analyzing patients’ ability to recall information on informed consent forms and finding that patients were oftentimes unable to do so); Kenneth D. Hopper et al., Informed Consent Forms for Clinical and Research Imaging Procedures: How Much Do Patients Understand?, 164 Am. J. Roentgenology 493, 493 (1995) (concluding that consent forms used in radiology practice are oftentimes “too complex for the average patient to understand”).

  268. See, e.g., Vanessa Watts Simonds et al., Health Literacy and Informed Consent Materials: Designed for Documentation, Not Comprehension of Health Research, 22 J. Health Commc’n 682, 683 (2017) (“Although not intentionally deceptive, consent forms often use complex language and are designed primarily to document agreement to participate rather than to ensure that participants understand the proposed research.”); Bonne Lorenzen et al., Using Principles of Health Literacy to Enhance the Informed Consent Process, 88 AORN J. 23, 24 (2008) (describing one hospital’s experience with revising informed consent forms to increase patient comprehension, and noting that “[t]he Office of the General Counsel of the American Medical Association contends that the essence of informed consent is not having a patient sign a written form but is a process involving communication between a patient and physician that includes verification of a patient’s understanding and then authorization or agreement to undergo a specific medical intervention”); Leonardo Tamariz et al., Improving the Informed Consent Process for Research Subjects with Low Literacy: A Systematic Review, 28 J. Gen. Internal Med. 121, 121 (2012) (“Research participants with inadequate or marginal health literacy may not be able to fully comprehend the information disclosed in consent forms.”).

  269. See generally Benjamin Moulton & Jaime S. King, Aligning Ethics with Medical Decision-Making: The Quest for Informed Patient Choice, 38 J.L. Med. & Ethics 85, 85–87 (2010); Glyn Elwyn et al., Shared Decision Making: A Model for Clinical Practice, 27 J. Gen. Intern. Med. 1361, 1361–62 (2012).

  270. Evelyne Shuster, Fifty Years Later: The Significance of the Nuremberg Code, 337 New Eng. J. Med. 1436, 1437–39 (1997).

  271. See Jay Katz, “Ethics and Clinical Research” Revisited: A Tribute to Henry K. Beecher, Hastings Ctr. Rep., Sept.–Oct. 1993, at 34. See generally Henry K. Beecher, Ethics and Clinical Research, 274 New Eng. J. Med. 1354 (1966).

  272. See supra note 100.

  273. David M. Smolin, The Tuskegee Syphilis Experiment, Social Change, and the Future of Bioethics, 3 Faulkner L. Rev. 229, 229, 234 (2012).

  274. That said, criminal actions against physicians do not always result in meaningful penalties. See Carrie Teegardin & Lois Norder, Doctors Cut Deals for Sex Crimes, Atlanta J.-Const., https://doctors.ajc.com/doctors_cut_deals_for_sex_crimes [https://perma.cc/TVJ6-AYGK] (last visited Feb. 5, 2022).

  275. That said, some state courts are willing to incorporate HIPAA’s standards into the standard of care for civil suits based on breach of confidentiality. Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 102 A.3d 32, 46–49 (Conn. 2014) (holding that HIPAA and its implementing regulations may inform the standard of care applicable to common law claims arising from a health care provider’s alleged breach of its duty of confidentiality); see also I.S. v. Wash. Univ., No. 4:11CV235, 2011 WL 2433585, at *1, *3 (E.D. Mo. June 14, 2011) (addressing jurisdictional issues of a claim of negligence per se based on violations of HIPAA).

  276. See supra note 63.

  277. See supra note 65.

  278. Fraud & Abuse Laws, HHS-OIG, https://oig.hhs.gov/compliance/physician-education/fraud-abuse-laws/ [https://perma.cc/K3FC-DAUL] (last visited Apr. 1, 2022).

  279. See supra Section III.A.4.

  280. See supra Section III.A.2.

  281. Though they may violate statutory protections like the Civil Rights Act, the Americans with Disabilities Act, and § 1557 of the Patient Protection and Affordable Care Act.

  282. See supra Sections III.B.1, III.B.3.

  283. Mehlman, supra note 124, at 27–30; see also Anderson & Steele, supra note 134, at 251–60.

  284. See, e.g., Daniel P. Kessler, Evaluating the Medical Malpractice System and Options for Reform, J. Econ. Persp. Spring 2011, at 95 (citing a 1990 Harvard Medical Practice Study that found that “only 1 in 15 patients who suffer injuries as a result of medical malpractice receive compensation, and that five-sixths of cases that receive compensation have no evidence of negligence”); Thomas H. Cohen & Kristen A. Hughes, Bureau of Justice Statistics Special Report: Medical Malpractice Insurance Claims in Seven States, 2000–2004 5 (2007), https://bjs.ojp.gov/content/pub/pdf/mmicss04.pdf [https://perma.cc/XUD5-WGQK] (finding that in Florida, Texas, and Missouri, it takes four years on average to resolve a malpractice claim; in Nevada and Illinois, slightly over five years); Studdert et al., supra note 86, at 2024 (finding that for every dollar of tort compensation in medical malpractice cases, fifty-four cents went to litigation expenses and costs); see also David A. Hyman & Charles Silver, Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid, 59 Vand. L. Rev. 1085, 1089–91 (2006); Troyen A. Brennan et al., Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation, 335 New Eng. J. Med. 1963, 1963 (1996).

  285. See supra Section III.A.3.

  286. See Patient-Physician Relationships, Opinion E-1.1.2, Am. Med. Ass’n, https://www.ama-assn.org/system/files/code-of-medical-ethics-chapter-1.pdf [https://perma.cc/2UGW-TNHT] (last visited Apr. 24, 2022) (requiring that physicians “uphold ethical responsibilities not to discriminate against a prospective patient on the basis of race, gender, sexual orientation or gender identity, or other personal or social characteristics that are not clinically relevant to the patient’s care”).

  287. See Withholding or Withdrawing Life-Sustaining Treatment, Opinion E-5.3, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/withholding-or-withdrawing-life-sustaining-treatment [https://perma.cc/RFV7-JGAT] (last visited Apr. 24, 2022) (establishing guidelines for physician involvement in patient decision-making for end of life care decisions).

  288. See Physicians & Health of Cmty., Opinion E-8.7, Am. Med. Ass’n https://www.ama-assn.org/delivering-care/ethics/routine-universal-immunization-physicians [https://perma.cc/9QF7-7MLT] (last visited Apr. 24, 2022) (identifying immunization as one of physicians’ “ethical responsibilit[ies] to . . . prevent the spread of infectious disease in health care settings”).

  289. See Professional Self-Regulation, Opinion E-9.1.1–3, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/romantic-or-sexual-relationships-patients [https://perma.cc/ZT4A-XQNA] (last visited Apr. 24, 2022) (discussing romantic or sexual relationships with patients, romantic or sexual relationships with key third parties, and sexual harassment in the practice of medicine).

  290. See Financing and Delivery of Health Care, Opinion E-11.2.2, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/conflicts-interest-patient-care [https://perma.cc/YX7D-5C9N] (last visited Apr. 24, 2022) (discussing conflicts of interest in patient care).

  291. See supra Section IV.B.