When individual patients' medical decisions contribute to population-level trends, physicians may struggle with how to promote justice while maintaining respect for patient autonomy. This article argues that this tension might be resolved by using the informed consent conversation as an opportunity to position patients as societal stewards.
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References
1.
See generally, N. N.Sawicki, “Modernizing Informed Consent: Expanding the Boundaries of Materiality,”University of Illinois Law Review2016, no. 3 (2016): 821–72, at 829–34.
2.
G.Dworkin, The Theory and Practice of Autonomy (Cambridge: Cambridge University Press, 1988) at 110-112 (discussing both intrinsic and utilitarian arguments for autonomous decision-making).
3.
See generally, E. J.Emanuel and L. L.Emanuel, “Four Models of the Physician-Patient Relationship,”JAMA267, no. 16 (1992): 2221–29.
4.
Autonomous decision-making requires the satisfaction of a number of conditions, of which factual understanding is only one. See R. R.Faden and T. L.Beauchamp, A History and Theory of Informed Consent (New York: Oxford University Press, 1986): at 241–61 (identifying intentionality, understanding and non-control as necessary conditions); N. N. Sawicki, “Ethical Limitations on the State's Use of Arational Persuasion,” Law and Policy 38, no. 3 (2016): 211–33, at 215 (identifying identity, capacity, factual understanding, and voluntariness as necessary conditions).
5.
One of the primary goals of informed consent is to correct an information asymmetry between physician and patient. Faden and Beauchamp, supra note 4, at 305.
6.
See T. L.Beauchamp, “Autonomy and Consent,” in F. G.Miller and A.Wertheimer, eds., The Ethics of Consent: Theory and Practice (New York: Oxford University Press, 2010): at 62; President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (October 1982), at 42-43.
7.
See generally, Sawicki supra note 1.
8.
Id., at 828, 830–31.
9.
See J. R.Waltz and T. W.Scheuneman, “Informed Consent to Therapy,”Northwestern University Law Review64, no. 5 (1969): 628–50, 638 (noting that informed consent case law “ha[s] not clearly articulated standards of materiality”); J. W. Berg et al., Informed Consent: Legal Theory and Clinical Practice (New York: Oxford University Press, 2d ed., 2001): at 64 (noting a “lack of clear definition of the scope” of required informed consent disclosure); Faden and Beauchamp, supra note 4, at 9 (noting that the question of what must be disclosed to facilitate autonomous decision-making “remain[s] unsettled”).
10.
Sawicki, supra note 1, at 834-835.
11.
See, e.g., J. S.King and B. W.Moulton, “Rethinking Informed Consent: The Case for Shared Medical Decision-Making,”American Journal of Law and Medicine32 (2006): 429–502, at 430–31 (discussing research on variability in patient values and preferences); R. Gatter, “Informed Consent Law and the Forgotten Duty of Physician Inquiry,” Loyola University Chicago Law Journal 31, no. 4 (2000): 557–97, at 582 (offering examples of how patients' non-medical circumstances may affect the type of information they value and therefore seek from their physicians); Institute of Medicine of the National Academy of Sciences, Capturing Social and Behavioral Domains and Measures in Electronic Health Records (2014) (recognizing that non-medical facts about the social determinants of a patient's health are essential for effective diagnosis and treatment).
12.
Sawicki, supra note 1, at 823–24 (discussing the evolution of claims that informed consent should incorporate non-medical facts that patients consider relevant).
13.
N.Hallowell, “Consent to Genetic Testing: A Family Affair,” in O.Corriganet al., The Limits of Consent: A Socio-ethical Approach to Human Subject Research in Medicine (New York: Oxford University Press, 2009).
School Buildings and Grounds – Private Schools – Immunization, 2015 Cal. Legis. Serv. Ch. 35 (S.B. 277) (West), amending Cal. Health & Safety Code § 120325. See A.Nagourney, “California Mandates Vaccines for Schoolchildren,”New York Times, June30, 2015, available at <http://www.nytimes.com/2015/07/01/us/california-mandates-vaccines-for-school-children.html> (last visited January 6, 2017).
16.
The Council on Foreign Relations, which maintains an interactive map of vaccine-preventable outbreaks (measles, mumps, rubella, and whooping cough being the most prevalent in the United States), identified over 75,000 cases in North America since 2008. Council on Foreign Relations, Vaccine-Preventable Outbreaks, available at <http://www.cfr.org/interactives/GH_Vaccine_Map> (last visited January 6, 2017). For example, in 2014 alone, over 13,000 cases of outbreak-related whooping cough were diagnosed in the United States. Id.
17.
L. O.Gostin, “The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law, and Society,”Maryland Law Review54, no. 1 (1995): 1–131, at 15–17; K. H. Rothenberg and E. Lovoy, “Something Old, Something New: The Challenge of Tuberculosis Control in the Age of AIDS,” Buffalo Law Review 42 (1994): 715–60, at 719–20.
18.
S. A.Munroet al., “Patient Adherence to Tuberculosis Treatment: A Systematic Review of Qualitative Research,”PLOS Medicine4, no. 7 (2007): 1230–45; A. Pablos-Mendez et al., “Nonadherence in Tuberculosis Treatment: Predictors and Consequences in New York City,” American Journal of Medicine 102, no. 2 (1997): 164–70. But see Gostin, supra note 17, at 118 (noting the unreliability of using “status characteristics” to predict non-compliance with treatment).
19.
See, e.g., Livingston v. State, 995 A.2d 812 (Md. App. 2010); In Re Washington, 735 N.W.2d 111 (Wisc. 2007); City of New York v. Antoinette R., 630 N.Y.S.2d 1008 (1995); City of Newark v. J.S., 652 A.2d 265 (N.J. Super. 1993).
H.Merkel, L. O.Gostin, and D. P.Fidler, “Extensively Drug-Resistant Tuberculosis: An Isolation Order, Public Health Powers, and a Global Crisis,”JAMA298, no. 1 (2007): 83–86.
24.
Moral hazard is an economic principle describing situations where individuals who do not bear the risks of their decision-making (for example, where those risks are borne primarily by third parties, as in the case of insurance) are more likely to make riskier or more costly choices.
25.
See L.Hamel, J.Firth, and M.Brodie, “Kaiser Health Policy News Index: February 2014,”available at <http://kff.org/health-reform/poll-finding/kaiser-health-policy-news-index-february-2014> (last visited January 6, 2017) (reporting that news about PPACA and its implementation was closely followed by the public, with almost six in ten respondents following news about PPACA “very” or “fairly” closely).
26.
Public attention was drawn to the high (and variable) costs of American medical care due to a series of very high-profile articles published by the New York Times in 2013 and 2014 as part of a series entitled Paying Till it Hurts, available at <http://www.nytimes.com/interactive/2014/health/paying-till-it-hurts.html> (last visited January 6, 2017). See also E.Rosenthal, “The Price for a Hip Replacement? Many Hospitals Are Stumped, Research Shows,”New York Times, Feb. 11, 2013, at A21 (discussing research findings reported in Jaime A. Rosenthal, et al., “Availability of Consumer Prices from US Hospitals for a Common Surgical Procedure,” JAMA Internal Medicine 173, no. 6 (2013): 427-432).
OECD (The Organisation for Economic Co-operation and Development), Why Is Health Spending in the United States So High?, available at <https://www.oecd.org/united-states/49084355.pdf> (last visited January 6, 2017).
31.
The Commonwealth Fund, which studied health care data from thirteen high-income countries, found that the U.S. had the lowest life expectancy at birth; the highest infant mortality rate; the highest prevalence of chronic diseases and obesity. The Commonwealth Fund, U.S. Health Care from a Global Perspective (October 8, 2015), available at <http://www.common-wealthfund.org/publications/issue-briefs/2015/oct/us-health-care-from-a-global-perspective> (last visited January 6, 2017).
32.
See generally, OECD, supra note 30.
33.
A.Gawande, “The Cost Conundrum: What a Texas Town Can Teach Us about Health Care,”The New Yorker, June1, 2009.
34.
J.Mantel, “Legal Barriers to Physicians' Stewardship Role,”American Journal Bioethics14, no. 9 (2014): 40–42; A. S. Brett and L. B. McCullough, “Addressing Requests by Patients for Nonbeneficial Interventions,” JAMA 307, no. 2 (2012): 149–50.
W.Levinsonet al., “‘Choosing Wisely’: A Growing International Campaign,”BMJ: Quality and Safety Online First2014 (2014): 1–10, at 2; D. Wolfson, J. Santa, and L. Slass, “Engaging Physicians and Consumers in Conversations about Treatment Overuse and Waste: A Short History of the Choosing Wisely Campaign,” Academic Medicine 89, no. 7 (2014): 990–95, at 991; J. S. Santa, “Communicating Information about ‘What Not to Do’ to Consumers,” BioMed Central: Medical Informatics and Decision Making 13, no. S2 (2013): 1–6.
37.
See generally, Sawicki, supra note 4.
38.
O.Ben-Shahar and C. E.Schneider, “The Failure of Mandated Disclosure,”University of Pennsylvania Law Review159 (2011): 647–749, at 743–44 (concluding that legally-mandated disclosures typically fail to achieve their goals in part due to their “length, complexity, and difficulty”).
39.
See generally, T. L.Beauchamp and J. F.Childress, Principles of Biomedical Ethics (New York: Oxford University Press, 6th ed., 2008).
40.
See D.Callahan and B.Jennings, “Ethics and Public Health: Forging a Strong Relationship,”American Journal of Public Health92, no. 2 (2002): 169-176; L. O. Gostin and M. Powers, “What Does Social Justice Require for the Public's Health? Public Health Ethics and Policy Imperatives,” Health Affairs 25, no. 4 (2006): 1053-1060.
41.
J. M.Mann, “Medicine and Public Health, Ethics and Human Rights,”Hastings Center Report27, no. 3 (1997): 6-13, at 6; O. O'Neill, “Public Health or Clinical Ethics: Thinking Beyond Borders,” Ethics and International Affairs 16, no. 2 (2002): 35-45, at 35, 38.
42.
P. A.Ubel and R.Jagsi, “Promoting Population Health through Financial Stewardship,”New England Journal of Medicine370, no. 14 (2014): 1280–81.
43.
See M. A.Rodwin, “Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System,”American Journal of Law and Medicine21, no. 2–3 (1995): 241–257, at 253 (identifying trends in medical practice that “reinforce the idea that physicians should serve interests beyond those of individual patients”); L. A. Jansen, “Between Beneficence and Justice: The Ethics of Stewardship in Medicine,” Journal of Medicine and Philosophy 38, no. 1 (2013): 50–63, at 50–51 (discussing the ethic of stewardship as a response to rising health care costs).
44.
See, e.g., American Medical Association, Principles of Medical Ethics – Preamble, available at <http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.page> (last visited January 6, 2017) (“As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.”); Council of Medical Specialty Societies, Ethics Statement, available at <http://cmss.org/policies-positions/ethics-statement/> (last visited January 6, 2017) (“The ethic of medicine must seek to balance the physicians' responsibility to each patient and the professional, collective obligation to all who need medical care.”).
45.
J. C.Tilburt, “Addressing Dual-Agency: Getting Specific About the Expectations of Professionalism,”American Journal of Bio-ethics14, no. 2 (2014): 29–36, at 30.
46.
ABIM Foundation, ACP-ASIM Foundation, and European Federation of Internal Medicine, “Medical Professionalism in the New Millennium: A Physician Charter,”Annals of Internal Medicine136 no. 3 (2002): 243–46, at 244; C. K. Cassel and J. A. Guest, “Choosing Wisely: Helping Physicians and Patients Make Smart Decisions About Their Care,” JAMA 307 no. 17 (2012): 1801–02, at 1802 (“The charter's commitment to a just distribution of finite resources specifically calls on physicians to be responsible for the appropriate allocation of resources and to scrupulously avoid superfluous tests and procedures.”).
47.
“From the Editor - Health and Social Justice: The Role of Today's Physician,”AMA Journal of Ethics17, no. 10 (2015): 894–96, at 894.
48.
Brett and McCullough, supra note 34, at 150.
49.
See generally, M. G.Bloche, The Hippocratic Myth (London: Palgrave Macmillan, 2011).
50.
Both federal and state laws require health care professionals to report suspected child abuse or neglect. J. E.Tinsley, “Failure to Report Suspected Case of Child Abuse,” 6 American Jurisprudence Proof of Facts 2d345 (September2016 Update).
51.
Most state laws require health care providers to report injuries resulting from firearms, knives, or other weapons. D.Houryet al, “Violence-Inflicted Injuries: Reporting Laws in the Fifty States.”Annals of Emergency Medicine39, no. 1 (2002): 56-60.
52.
Several states require health care providers to report positive drug tests in pregnant women and newborns, as well as evidence of drug use by pregnant women. J. R.Shroedel and P.Fiber, “Punitive Versus Public Health Oriented Responses to Drug Use by Pregnant Women,”Yale Journal of Health Policy, Law, and Ethics1 (2001): 217-235, at 222.
53.
Most states provide for voluntary reporting (only a few state laws are compulsory) of patients with physical and mental impairments that may affect driving ability. J. T.Bergeret al, “Reporting by Physicians of Impaired Drivers and Potentially Impaired Drivers,”Journal of General Internal Medicine15, no. 9 (2000): 667-672, at 669-70.
54.
L. O.Gostin, Public Health Law: Power, Duty, Restraint (Berkeley: University of California Press, 2000), at 117-119.
55.
See P. S.Appelbaum, “A Theory of Ethics for Forensic Psychiatry,”Journal of the American Academy of Psychiatry and the Law Online25, no. 3 (1997): 233-247.
56.
See generally, Bloche, supra note 49.
57.
Principle VIII of the AMA's Principles of Medical Ethics provides that “A physician shall, while caring for a patient, regard responsibility to the patient as paramount.” See also Beauchamp and Childress, supra note 39, at 311 (describing fidelity as “clearly a central norm” in health care practice).
58.
In addition to the specific contexts above, physicians also have basic obligations to triage patient care based on medical need, as well as personal responsibilities and commitments that may conflict with duties to patients. This article does not address these underlying conflicts.
59.
See generally, J. S.King and B. W.Moulton, “Rethinking Informed Consent: The Case for Shared Medical Decision-Making,”American Journal of Law and Medicine32, no. 4 (2006).
60.
See, e.g., Tilburt, supra note 45, at 32 (noting “the ways in which the [medical] profession as a whole is complicit with nonbeneficial consumption of health technology in the name of patient welfare.”)
61.
Daniel Wikler notes that when health policy “permit[s] the individual to take a measure of responsibility for some of the adverse consequences of her heath for others,” this “fosters moral agency” on the part of the patient. D.Wilker, “Personal and Social Responsibility for Health,”Ethics and International Affairs16, no. 2 (2002): 47–55, at 54.
62.
See generally, Berg et al., supra note 9, at 32-35; D.Callahan, “Autonomy: A Moral Good, Not a Moral Obsession,”Hastings Center Report (1984): 40-42; C. E. Schneider, “After Autonomy,” Wake Forest Law Review 41 (2006): 411-444; D. J. Roth-man, “The Origins and Consequences of Patient Autonomy: A 25-Year Retrospective,” Health Care Analysis 9 (2001): 255-264; E. D. Pellegrino, “Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship,” Journal of Contemporary Health Law and Policy 10 (1994): 47-68.
63.
See, e.g., M. A.Hall, “Rationing Health Care at the Bedside,”New York University Law Review69, nos. 4-5 (1994): 693-780.
64.
105 Ill. Comp. Stat. Ann. 5/27–8.1(8) (2015) (emphasis added).
65.
B.Lo and M. H.Katz, “Clinical Decision Making during Public Health Emergencies: Ethical Considerations,”Annals of Internal Medicine143, no. 7 (2005): 493–98, at 495.
66.
Id.
67.
N. A.Bostick, M. A.Levine, and R. M.Sade, “Ethical Obligations of Physicians Participating in Public Health Quarantine and Isolation Measures,”Public Health Reports123, no. 1 (2008): 3–8, at 6; H. A. Rosencranz and W. G. Lavey, “Treating Patients with Communicable Diseases: Limiting Liability for Physicians and Safeguarding the Public Health,” Saint Louis University Law Journal 32, no. 1 (1987): 75–101, at 75.
68.
Brett and McCullough, supra note 34.
69.
Id., at 150
70.
M. A.Graber and J. F.Tansey, “Autonomy, Consent, and Limiting Healthcare Costs,”Journal of Medical Ethics31, no. 7 (2005): 424–26, at 425.
71.
Id.
72.
Id. See also P. A.Ubel and S.Goold, “Recognizing Bedside Rationing: Clear Cases and Tough Calls,”Annals of Internal Medicine126, no. 1 (1997): 74-80, at 77 (maintaining that a physician might be justified in prescribing a less expensive medicine with slightly higher side effects if he tells the patient, “There is a more expensive medication that causes less drowsiness, but it is much more expensive and, in our managed care plan, we reserve it for truck drivers and others whose need for it is more pressing,” thereby leaving the patient with the choice of whether to pay for the medication herself, or to perhaps make an argument for “pressing need” with the payer).
73.
Santa, supra note 36, at 5.
74.
Id., at 4; Levinson, supra note 36, at 2. See also Wolfson et al, supra note 36, at 991 (demonstrating that physicians also prefer language about patient well-being and quality of care; but “when presented with language that moved away from the interests of the patient … and towards society's need for a sustainable health system, they [physicians] were less motivated to take action.”).
75.
Lo and Katz, supra note 65. That said, much of this resistance may also stem from the lack of societal support – such as job security and financial resources – available to individuals subject to quarantine or isolation.
76.
See generally M. A.Hall, “Law, Medicine, and Trust,”Stanford Law Review55 (2002): 463–527, at 470 (explaining that trust is the “glue” that holds the doctor-patient relationship together).
77.
See, e.g., B.Minogue, “The Two Fundamental Duties of the Physician,”Academic Medicine75, no. 5 (2000): 431–42, at 433 (suggesting that “a little more distrust” of physicians may have beneficial effects).
78.
Compare, for example, concerns about physicians' divided loyalties in managed care contexts, where they receive financial incentives for limiting care. See generally, Rodwin, supra note 43.
79.
Lo and Katz, supra note 65, at 495.
80.
M. C.Weinstein, “Should Physicians Be Gatekeepers of Medical Resources?”Journal of Medical Ethics27, no. 4 (2001): 268–74, at 270–71 (referencing consumers' collective interest in cost-consciousness and low insurance costs).
81.
See D. B.Reuben and C. K.Cassel, “Physician Stewardship of Health Care in an Era of Finite Resources,”JAMA306, no.4 (2011): 430–31, at 430 (discussing stewardship at the policy, payer, practice, clinician, and patient levels, and commenting that “it is unreasonable to expect patients to consider societal costs in making personal health decisions”); L. C. Kaldjian, “Patient Care and Population Health: Goals, Roles, and Costs,” Journal of Public Health Research 3, no. 2 (2014): 81–82, at 81 (suggesting critical evaluation of “proposals that assign clinicians the direct double responsibility of meeting the medical needs of patients while simultaneously meeting the economic needs of populations,” suggesting that cost control measures be implemented by those “not directly involved” in patient care); Tilburt, supra note 4545, at 33 (noting that physicians' struggle to balance patient interests with societal stewardship “is an unsavory by-product of our society's inability to achieve meaningful, just structures within which physicians can practice.”).
