2. CONSTRUCTIVE FRAUD

"When a fiduciary relationship exists between the parties to a transaction, equity raises a presumption of fraud when the superior party obtains a possible benefit." Watts v. Cumberland County Hospital Sys., Inc., 317 N.C. 110, 116, 343 S.E.2d 879, 884 (1986). As the North Carolina Supreme Court opined in Link v. Link, "[a]ny transaction between persons so situated is 'watched with extreme jealousy and solicitude; and if there is found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.'" Link v. Link, 278 N.C. 181, 192, 179 S.E.2d 697, 704 (1971) (issue of constructive fraud in stock transfer between husband and wife) (citing Rhodes v. Jones, 232 N.C. 547, 548, 61 S.E.2d 725, 726 (1950)). Constructive fraud exist when (1) there is a relationship of trust and confidence; and (2) this relationship surrounds and leads up to an agreement in which the defendants are alleged to have abused their position of trust to the detriment of the plaintiff. Watts, 317 N.C. at 116, 343 S.E.2d at 884 (citing Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725 (1950)). In the context of a fiduciary relationship, plaintiff need not show actual intent to deceive in order to prove constructive fraud. Link, 278 N.C. at 192, 179 S.E.2d at 704.

To patients, a medical center and its health care providers have in their hands the power to prevent death. Accordingly, our Courts recognize that physicians and other health care providers have a fiduciary relationship with their patients, and impose upon health care providers "the duty of good faith and fair dealing." Black v. Littlejohn, 312 N.C. 626, 646, 325 S.E.2d 469, 482 (1985) (discussion of physician-patient relationship in context of medical malpractice statute of limitations). See also, Watts, 317 N.C. at 116, 343 S.E.2d at 884; Lackey v. Bressler, 86 N.C. App. 486, 493, 358 S.E.2d 560, 564 (1987) (patient satisfied first element of constructive fraud by Duke University Medical Center and University "since it is recognized that the relationship of patient and physician is a fiduciary one"); Bowlin v. Duke University, 108 N.C. App. 145, 151, 423 S.E.2d 320, 323 (1992) ("Our Court has consistently recognized the physician-patient relationship to be a fiduciary one, . . . ").

Interestingly, the American Arbitration Association itself once took the position that it would "refuse to administer mandatory arbitration of patients' health-care disputes" and instead administer only voluntary arbitration, because "'with a consumer it might be a computer or a house that's at stake, but here it's someone's life," (See "American Arbitration Association to Change Policy on Health Care," Wall Street Journal, July 1, 1998) (quoting George Friedman, Senior Vice President of AAA). Mr. Friedman has also been credited with stating that AAA's new policy is expected to extend to malpractice claims as well. (See "American Arbitration Association to Change Policy on Health Care," Wall Street Journal, July 1, 1998). The AAA, however, has apparently decided not to institute this policy change, and now considers all arbitration clauses entered into as "voluntary."