Q: Physician's Liability. Cal. Civ. Code 1572 vs 1573.

A: Under California law, Sections 1572 and 1573 of the Civil Code address different types of fraud that can result in liability for a physician. Here's a breakdown of the key differences:

1. Cal. Civ. Code § 1572 (Actual Fraud):

- This section deals with actual fraud, which involves intentional misrepresentation or deceit.

- For a physician to be liable under this section, they must have knowingly made a false representation with the intent to deceive the patient or another party.

- The misrepresentation must be material, meaning it would have influenced the patient's decision-making process.

- The patient must have relied on the misrepresentation and suffered damages as a result.

2. Cal. Civ. Code § 1573 (Constructive Fraud):

- Constructive fraud does not require an intent to deceive; rather, it arises from a breach of duty by the physician that misleads the patient, regardless of intent.

- This section applies when there is a fiduciary or confidential relationship between the physician and the patient, which creates a heightened duty of care and loyalty.

- A physician may be liable for constructive fraud if they:

a) Make a false representation without a reasonable ground for believing it to be true;

b) Make a promise without the intent to perform it;

c) Fail to disclose a material fact that the patient has a right to know, given the fiduciary relationship.

- The patient must have suffered damages as a result of the constructive fraud.

In summary, the main difference between the two sections is that actual fraud (§ 1572) requires intentional deceit, while constructive fraud (§ 1573) can occur due to a breach of fiduciary duty, even without intent to deceive. Constructive fraud liability arises from the special relationship between a physician and patient, which demands a higher standard of care and transparency.