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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 interest. 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.
Jacob T. Elberg *
* Associate Professor and Faculty Director, Center for Health & Pharmaceutical Law, Seton Hall University School of Law. J.D., Harvard Law School; A.B., Dartmouth College.