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Abstract

Many mechanisms have been tried to protect patients from the effects of undisclosed payments to physicians so that patients can make informed decisions about whether their physician’s recommendations are tainted because of the physician’s conflict of inter- est. Over the past decade, those efforts have been dominated by the Physician Payments Sunshine Act (“Sunshine Act”). A decade ago, the Sunshine Act took effect with the aim of increasing transparency of financial relationships between health care providers and manufacturers of pharmaceuticals and medical devices. Yet a decade and more than a billion dollars in effort later, the highly touted Act is a failure when it comes to its primary goal: educating patients about when their doctors have a financial conflict of interest. After a decade of the Sunshine Act and new DOJ enforcement actions to promote compliance, few patients access the government database or are even aware of its existence. This Article examines the Sunshine Act and ties it deficiencies to its failure to focus on the trust inherent to the doctor-patient relationship. This analysis of the Sunshine Act’s impact ten years after its passage reveals its structure is ill-suited to achieve its noble aspirations. Further, while its goals are consistent with scholarship surrounding fiduciary relationships and informed consent, its current structure is not. This analysis comes at a key moment. The Sunshine Act represented a second wave of regulation to address physician conflicts, following (and partially preempting) a series of state laws aimed at transparency. State dissatisfaction with the Sunshine Act has now prompted a third wave, as states begin to enact new regulations aimed at succeeding where the Sunshine Act has failed. These state efforts unfortunately suffer from some of the same limitations as the Sunshine Act. Recent federal prosecutions of dozens of doctors under the Act, however, provide a roadmap for a patient-centered way to achieve the Sunshine Act’s goal to inform patients of physician conflicts. This Article analyzes these recent prosecutions and, for the first time, applies them to the existing scholarly debate surrounding the existence of fiduciary duties and the scope of informed consent. This Article concludes the Sunshine Act is spreading “sunshine” in the wrong direction. The Act puts manufacturers and the government in the middle of the physician-patient relationship by requiring disclosure by manufacturers to the government and tasking the government with informing patients through its website. Instead of this scheme, the government should return to its more effective role as enforcer by requiring physicians to disclose to their patients directly. By addressing conflicts of interest where care is delivered, this patient-centered framework has the potential to achieve the currently unrealized goals of the Sunshine Act, finally bringing patients into the light.

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