What Happens When Common Law Duty Conflicts with Fiduciary Duty? Informed Consent in the Context of Fertility Clinic Liability
Bibliographic record
Abstract
This paper will explore some of the factors that a court would consider in determining the standard of care regarding disclosure of material risks of ART treatments. As we shall see, there are a number of factors that weigh heavily towards applying a very onerous standard of disclosure on Assisted Reproductive Technology (ART) doctors. At the same time, and more controversial perhaps, is my argument that there may be factors present in the ART setting that could very well justify ousting the duty of disclosure altogether. I shall argue that the development and presence of a fiduciary duty by the doctor to the patient may, in certain circumstances, oust the obligation of the doctor to disclose relevant medical risks and thereby exonerate a doctor that is alleged to have failed to comply with a disclosure duty. Admittedly, this is a novel argument and has application beyond the context of ART therapy. However, it is within the context of ART therapy that I examine the inherent conflict that can arise between a doctor’s common law duty of disclosure and a doctor’s fiduciary obligation to patients. First the author begins by providing an overview of the state of ART in the United States and Canada. Then the author compares how success rate information is communicated to the public in the U.S. and Canada. There are several reasons to be concerned about whether patients in Canadian clinics are receiving adequate disclosure of success rates. Then the author examines the common law regarding informed consent to determine what a court ought to consider in assessing the proper standard of disclosure in the fertility clinic. After assessing a number of factors that would suggest imposing an extremely onerous standard, the author then assesses the implications of a finding that the doctor-patient relationship is also of a fiduciary nature. The author argues that in such a case the fiduciary duty may actually overshadow the factors that would normally require a high standard of disclosure. In other words, the existence of a fiduciary duty may render inapplicable the common law requirement of disclosure applied in the leading Reibl case.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.078 | 0.128 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.002 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.020 | 0.060 |
| Scholarly communication | 0.022 | 0.027 |
| Open science | 0.005 | 0.010 |
| Research integrity | 0.040 | 0.033 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".