Nancy J. Moore

Regulating self-referrals and other physician conflicts of interest.

For better or worse, the federal government is actively regulating physician conflicts of interest, including referrals of Medicare and Medicaid patients for health services in which physicians have a financial interest. The governments ever-increasing role in regulating physician conduct is a response to the professions own failure to adequately deal with conflict of interest problems, as well as a function of the governments greater stake in funding clinical practice and research. This article addresses the implications of the growing role of government for the continuing professionalism of physicians, given that professionalism is commonly thought to include the ability of a profession to regulate itself in the public interest. The author describes how professional societies and individual physicians still have a significant role to play in regulating self-referrals and other conflicts of interest, but that physicians must first correct serious deficiencies in their ideological treatment of conflicts of interest. To begin, they must distinguish between the pervasive conflicts of professional practice, which are open, obvious, and unavoidable, and true conflict-of-interest problems, in which the conflicts are hidden and avoidable. The article then articulates a general approach to resolving true conflicts-of-interest problems, borrowing doctrine from the well-developed field of legal ethics. The article ends with an application of the general approach to physician self-referrals, concluding that clients are often capable of informed consent, but that physicians are well-advised to issue their own self-referral guidelines that take into account the legitimate interests of third-party payers like the government, at least when such interests do not clearly conflict with the interests of patients.

Restating Intentional Torts: Problems of Process and Substance in the ALI's Third Restatement of Torts

Abstract The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts—a project that is currently ongoing. Rather than applaud or critique the specific choice the reporters are making, I have chosen to discuss two broader concerns regarding the project. The first concern is that the piecemeal nature of assembling all the separate projects of the Third Restatement of Torts (including the review and adoption of different sections within Intentional Torts) has made the Intentional Torts reporters’ task more difficult than it should have been and may contribute to an overall product that is flawed in important respects, primarily because of inconsistencies that cannot easily be corrected. The second concern is that the Intentional Torts reporters have too often lost sight of the conceptual distinctions between intentional and nonintentional torts. Although I agree that these conceptual distinctions should not have driven the basic organization of the project, as was once suggested, I argue that the reporters are making doctrinal decisions that further blur, rather than clarify, the boundaries between the intentional torts and other torts, primarily negligence.