As the number of malpractice suits against physicians escalates, the fear of being sued increases comparably, influencing medical decision making and often resulting in an approach known as defensive medicine. This chapter examines the phenomenon of defensive medical practice, its effects on decision making, and an alternative approach that offers better protection against litigation by fostering a collaborative rather than adversarial relationship between physician and patient.
Over the past 20 years, malpractice litigation has increased dramatically,
affecting both the medical profession and the larger community. Despite the
fact that litigation and claims appeared to peak around 1985 (1), the
number of claims and suits could still be described as epidemic. This
alarming increase has not only led to greater awareness of liability issues
on the part of the public and the medical profession but has also triggered
widespread (and not always realistic) fear.
Malpractice lawsuits have high visibility, particularly those resulting in
large awards. To make matters worse, a lawsuit for a large amount of money
constitutes front page news, whereas a physician's exoneration in a
lawsuit is often a back page entry. This asymmetry persists despite the
fact that, of the approximately 6% of malpractice cases that actually get
to court, 80% are won by the defendant physician (2).
As noted elsewhere in this volume, claims of malpractice occur when "bad
outcomes" are combined with "bad feelings." Litigation has become a common
response to bad outcome. All doctors-even those who practice good
medicine-are vulnerable to litigation. Although many physicians continue to
believe that litigation is something that happens "to the others," most are
keenly aware of the risks.
The popular press frequently trumpets issues central to the question. For
example, an article (3) under the heading of "Medical Malpractice Upheaval
in Florida" states: "Spiraling costs of medical malpractice lawsuits and
the insurance to pay the awards have reached a breaking point in southern
Florida...."
What are the effects of this view of the medical profession as a
"belegaled" sect (4, 5)? One of the major effects is a distinctly defensive
approach to practice, with the patients seen as adversaries long before any
hint of litigation supervenes. Frequent attention in the media to the issue
of malpractice may increase the level of paranoia among practitioners, in
which doctor-patient relationships become doctor-customer relations or-at
worst-defendant-litigant relations; and medical services are viewed as some
kind of product with concomitant warranties and guarantees. Defensive
practice may also usurp the clinical judgment of practitioners, and doctors
may lose enthusiasm for attending to the needs of patients because of a
perceived loss of autonomous control over the interaction. Nationwide,
physicians have left the high risk areas of practice (obstetrics,
orthopedics, and emergency medicine) or have abandoned the field of
medicine entirely (6-10). Emergency rooms are difficult to staff (11), and
insurance companies are accused of profiteering.
In striking contrast, the American Trial Lawyers Association has reported
that there is no crisis (12). The inference of this remarkable statement is
that doctors are in no greater danger of being sued than anyone else in
society and that complaints to the contrary are both unwarranted and
self-serving. From the viewpoint of this association of plaintiff's
attorneys, the notion of a crisis is a fantasy cooked up by physicians
anxious to invoke various legal protections and to justify higher fees.
Besides highlighting a source of significant disagreement between the
medical and legal professions, this statement and public reaction to it
account in part for the decline in the quality of the patient-practitioner
relationship and for the increase in the practice of defensive medicine.
Despite the ubiquity of the phrase "defensive medicine," few studies have demonstrated concrete signs of this approach to medical practice. For the most part, articles on the subject occur as reports on isolated and current malpractice predicaments. The American Medical News features almost weekly articles on malpractice litigation. A short sampling of information gleaned from articles on malpractice provides the following data:
-34% of physicians think the biggest problem in medicine is malpractice
liability (13).
-Between 1976 and 1986 there has been a 100% increase in claims against
psychiatrists (14).
-The victory in a lawsuit does not eliminate the detrimental psychological
effects of litigation (15).
-A fear of litigation increases the cost of medical care (i.e., more tests)
without observably better results (16).
-78% of M.D.s think fear of lawsuits leads to unnecessary testing (13).
-OB/GYNs face a 17% chance of lawsuits in a given year (11).
-95% of Florida's neurosurgeons have been sued (11).
-10% of medical fees received by New York physicians go toward liability
policy payments (17).
-Defensive medicine adds $2 billion annually to medical costs in New York
state (20).
-The public is more aware of malpractice and desires compensation (18, 19).
-Defensive medicine nationwide is costing an additional $15 billion
annually (20), an amount translating to $1.19 per week for every American.
-Physicians in 42% of all lawsuits closed in 1984 had previously been sued
(21).
Practitioners suffer from what Carol Turkington has termed "litigaphobia" (22), an exaggerated fear of lawsuit that cripples practice and does the patient a disservice. The legal system is viewed by physicians as a third party or interloper in the doctor-patient relationship. Current data leave it unclear whether the geographic patterns of litigation (higher by several orders of magnitude in some places) reflect the local distribution of physicians in particular specialties or the presence of a vigorous plaintiff's bar.
Defensive medicine is a practice of medicine centering, as its primary aim,
around self-protection from liability in the event of a tragic outcome,
rather than affording primacy to the patient's well-being; often it is
portrayed as a mechanism to anticipate and forestall hindsight-based
second-guessing of clinical decisions, e.g., whether or not to order a
particular diagnostic test. Defensive medicine may alter the individual
clinician's practice or the practice adopted by an entire institution.
Defensive medicine brings with it exponential increases in the costs
associated with clinical practice. Practitioners, the public, and third
party insurers all experience the same impact on the price of medical care
in the form of additional testing (even unnecessary testing). More
importantly, fear among health care practitioners and administrators has
contributed to a different kind of cost expressed in the shut-down or
unavailability of services in sectors of high-risk exposure. Yet, most
problematic of all, the practice of defensive medicine compromises not only
the cost but the quality of care given. In short, the fear of malpractice
litigation has a tangible effect on the manner in which all clinical
decisions are made, not just risky ones, but all varieties, from the
mundane to the most profound.
Discussants of defensive medicine in the literature have tended to
emphasize its harmful effects. For example, Simon defines the term as
follows (23):
... defensive medicine refers to any act or omission by a psychiatrist that is performed not for the benefit of the patient but solely to avoid malpractice liability or to provide a good legal defense against a malpractice claim.
Although this definition refers specifically to psychiatrists, defensive
medicine is practiced by physicians from every specialty, as well as by
others involved in the health care industry, including allied health
professionals and administrative policy makers. Furthermore, practices
that are defensive in essence have been mandated in some circumstances by
statute, judicial decree, or institutional regulations and policies.
A defensive stance undermines (sabotages) one of medicine's basic tasks:
providing the best possible health care. We argue that a partial
explanation of this failure involves the adverse affects for defensive
practice on the therapeutic alliance between doctor and patient. The
defensive clinician may become less empathic, more distant, in his or her
stance toward the patient. Clinicians who practice defensively tend to seek
data of an objective nature in preference to the sometimes more meaningful
subjective data such as psychosocial information. To put it another way, an
unintimidated clinician may seek to know the patient better as a person,
whereas a fearful clinician is more likely to focus and act upon test results.
Proponents of defensive medical practice may point to one possible
exception to an exclusively negative view: the notion of "defensive
documentation." Physicians who defend against subsequent second-guessing in
the courtroom by writing a great deal-although using up time that might
otherwise be profitably put to other purposes-nevertheless may leave an
improved record for future caretakers. Some clinicians claim, indeed, that
by focusing their defensive posture only on documentation they can continue
to look at the patient with less fearful and thus less adversarial eyes. We
would challenge this view by noting that quantity is no substitute for
quality. Careful documentation of the key points in evaluation and decision
making offers much better liability protection than a record that bulges
with indiscriminate details (but there is room for debate on this point).
Conversely, not all thorough medical practice is necessarily defensive:
many other factors inspire thoroughness, including the quest for knowledge
and improved data collection, the desire to fight disease, and the belief
that doing everything possible is indeed best for the patient. Such
practice may be distinguishable from defensive medicine primarily in the
focus of the physician's concern on the patient's care and the resulting
effect on the therapeutic alliance.
We would suggest that a good part of the blame for increased litigation may
lie in the increasingly adversarial nature of the doctor-patient
relationship even prior to the inherently adversarial nature of litigation
proper. Defensive medicine, itself an adversarial model, may thus not only
result from an increasingly litigious response to bad outcome but may
actually cause such a response. An obvious remedy for this dilemma would be
to improve the patient-practitioner alliance; however, in an atmosphere in
which both parties are frankly suspicious of one another, it is difficult
to build a mutually supportive relationship.
More than the pain, distress, and possible morbidity from unnecessary
testing results from defensive practice. The deterioration of the
therapeutic alliance conveys to the patient a strong sense of the
practitioner's emotional detachment; the emphasis of the doctor-patient
interaction shifts from concern for the well-being of the patient to
concern with the legal vulnerability of the practitioner. Thus, in a bitter
irony, defensive medicine exacerbates the very problem it is designed to
solve: rather than protecting the practitioner from lawsuits it may create
a climate of provocation in which lawsuits are even more likely to occur,
due to the bad feelings engendered by the impaired therapeutic alliance.
The following example noted earlier may illustrate this point:
A woman went to a gynecologist for a problem and a minor surgical procedure was recommended. At the beginning of the discussion of this procedure, the physician commented, "The law requires me to inform you of certain facts about this operation." And then, in a perceptible alteration of his normal patterns of speech, the gynecologist began to chant a litany of side effects, risks, morbidity, mortality, percentages, probabilities, etc. The patient later reported that after about ten seconds of listening to this, her mind shut down entirely. "This appears to be some sort of arcane ritual! The communication was not directed to me for any benefit of mine whatsoever."
Studies of informed consent interactions uniformly reveal how little
medical information is retained and how
rapidly recall of that small amount decays. Indeed, one can readily predict
that, in this instance, the patient would have had almost no recall after a
few minutes of any of the substantive material "shared" with her. But this
regrettable result did not occur because of the physician's problems in
explaining the procedure, or because of the patient's incapacity to
understand it. Instead, the mechanistic, purely "pro forma" presentation of
information-in sharp contrast to information shared as part of an open and
honest dialogue between physician and patient-ironically defeated its own
purpose in conveying information to the patient that might be used
constructively in the process of making a decision about treatment. A
legalistically designed attempt to give all possible information to the
patient resulted in no useful information being communicated at all.
A primitive form of defensive medicine was referred to in the old
sociomedical literature as the "hanging of crepe" (24). The allusion here
is to the hanging of crepe on the front door or gateposts to signify the
imminent or recent death of a family member. Less metaphorically, however,
this term was designed to reflect a carefully crafted pessimism, employed
by the old country doctors as a strategy to protect one's reputation. The
physician would paint the picture as looking as grim, dark, and hopeless,
so that a bad outcome would be taken as a matter of course and a good
outcome would represent a miracle of the doctor's healing power. This
technique dated clearly from the pre-litigation era and-although
representing a primitive form of defensive medicine-is really aimed more at
reputation than at litigation. However, crepe hanging contains some
elements of our current, more complex notion, the sharing of uncertainty.
We now recommend that one not present either a magically optimistic or a
"crepe-hung" pessimistic view of an uncertain situation, but merely a
willingness to confront that uncertainty.
We turn now from the issue of defensive practice to a related and even more
widespread phenomenon, that is, fear of liability. We will examine social,
legal, and medical factors that lead to such fear.
First, like other widespread phenomena, the medical malpractice crisis does
not occur in a social vacuum: indeed, we live in a litigious climate where
everyone seems to be suing everyone else on very little provocation. School
districts and municipalities experience difficulties in obtaining liability
insurance for otherwise ordinary services such as playgrounds, child care,
and the organization of athletic activities. Ice skating rinks and bowling
alleys have had to close because of the cost of liability insurance
premiums. In some instances, without any signs of an increase in actual
claims, premiums may suddenly double, triple, or quadruple.
A second social force leading to fear may be the perception that the
medical profession requires outside scrutiny and regulation. In this
context, public awareness of malpractice suits creates a self-fulfilling
prophecy: the more the public becomes aware that the medical profession is
vulnerable to litigation, the more likely the number of suits is to
increase. From this viewpoint, a judicial ruling by the legal system is
increasingly seen as an important mechanism for regulating the medical
profession.
Another social factor relevant here is the rise of consumerism. While one
might envision the informed consumer as the ideal person with whom to hold
an informed consent dialogue, promoting openness in the relationship and
thus staving off litigation, the rise of consumerism has at times resulted
in an adversarial stance: the consumer is inclined to struggle with and
resist the no-longer-authoritarian physician. As a result, the enlightened
consumer is seen all too often by the physician as a problem rather than as
a particularly good ally.
An additional dimension of the problem has to do with the social aspects of
medical practice itself, in the form of entitlement and elitism. Medical
training is long, expensive, and usually quite grueling. This
apprenticeship is commonly compared to college fraternity hazing. Those who
survive the "ordeal" often feel that they belong to a distinct class,
separate and different from lay persons, and that their labors have
justified a kind of entitlement. Such entitlement and the heavy weight
placed on the practitioners' judgment may prove alienating to patients and
to the public, as well as fostering a climate of counter-entitlement on the
patient's side. That is, patients may feel entitled to a perfect result.
It is impossible to open many magazines today without seeing large ads in a type face suitable for announcing the arrival of World War III:
Such advertisements support a common mechanistic model of malpractice: if
there is injury, then there must have been negligence. This notion, of
course, is subscribed to enthusiastically by many plaintiffs' attorneys.
The manner in which malpractice cases are decided hinges on the concept of
compensation for the victim of a bad outcome. Indeed, the simple fact that
the doctor has a large malpractice insurance policy reinforces the
inference in the public mind that more than adequate resources are
available to pay the deserved compensation and that, psychologically, it is
not really the doctor who is paying-a distortion that allows patients not
to feel conflict in relation to their "biting the hand that tried (and
failed) to cure them." Many inappropriate and disproportionate jury awards
appear to be based on such reasoning.
Finally, the intrusion of legal mediation between doctor and patient has
clouded the question of practitioner responsibility. While many attorneys
may maintain that the threat of malpractice litigation is a stimulus, by
representing a perceived threat of punishment, to sound medical care,
experience suggests that the intrusion of legal concepts into medical
practice may paralyze flexible and patient-centered decision making to the
point where it may actually be harmful to the patient. For example,
needless involuntary hospitalization springing from defensive practice is
costly and may be harmful to the patient.
Why does medical malpractice insurance compensate individuals in the present system?
In theory, such insurance is designed to protect against
the risk of negligence by providing an opportunity for fair compensation
when injuries occur as a result of that negligence. One of the most
significant limitations of the insurance model based on fault (negligence)
is that litigation in malpractice may stem in part from magical fantasies
of restoring of the status quo: the fantasy, for example, that the patient
who has had an amputation will somehow "get the leg back." These and
related intrapsychic factors may not be satisfied by a malpractice award,
which can, after all, provide only money for the perceived injury, not
restoration of the limb.
Another dimension of the problem is the third party payment system, which
places both the physician and the patient in somewhat remote positions in
regard to the actual transfer of money or services. The patient, all too
often, does not experience him or herself as actually paying for the
doctor's time: "the insurance will take care of it." A side effect of this
phenomenon is that physicians may order many additional tests, including
unnecessary ones, to assuage their fears of medical malpractice liability,
yet may act as though no additional costs supervened.
Some fears can be healthy and can lead to adaptive responses. Let us explore the implications of the fear of being sued for malpractice as it bears on clinical work, addressing both positive and negative effects.
We would argue that the primary benefit that may derive from the fear of
malpractice liability-but only when this fear is constructively and not
defensively used-is strengthened therapeutic alliance between clinician and
patient. Once clinicians openly acknowledge their own fears of liability,
they may then choose to address these concerns by putting their energies
into building mutually supportive relationships with their patients. This
is the response most likely to offer protection against a suit, since it
establishes good feeling between the two parties and creates an alliance
capable of withstanding a bad outcome. A strong alliance serves as an anticipatory
antidote to bad feelings concurring with a bad outcome.
The therapeutic alliance promotes these
"good feelings" by establishing as a shared goal the well-being of the patient.
Instead of being pitted against each other as adversaries, clinician and patient can
work together against the common enemy of disease.
A healthy alliance not only creates good feelings but can also contribute
to the likelihood of good outcomes, further decreasing the chances of
litigation. Patients who mistrust their physicians may fail to take
medications properly, or sabotage their care in other ways. They are also
likely to feel helpless and out of control, a condition leading to
increased stress and to potential deterioration of their actual medical
status.
Physicians can engage in a number of specific behaviors that will
strengthen their relationships with patients. By sharing the uncertainty
inherent in many medical situations, physicians remove themselves from the
pedestal of infallibility upon which they are frequently placed and assume
a more collaborative stance. In addition, patients who understand the
inevitable uncertainties of their treatment are better able to give truly
informed consent and to have reasonable expectations about their future
health. Thus, those bad outcomes that do occur may already have been
anticipated, lessening their negative impact by allowing the patient
opportunities to prepare both psychologically and otherwise. Anticipation
specifically prevents surprise, one of the most powerful "bad feelings"
leading to litigation.
Failure to provide adequate follow-up care, which has long been a weakness
of some physicians, can obviously have negative results, ranging from
continued or exacerbated health problems to a feeling on the part of the
patient that the physician is not interested in his or her health. Those
physicians who make themselves available for follow-up can positively
influence patient feelings and outcome, thus decreasing their chances of
being sued for malpractice. Clinicians have a special duty to follow up the
tragic outcomes that are inevitable in medical practice. Lawsuits are
particularly likely to result from cases of irreparable physical impairment
or death. To militate against such suits, physicians must remain available
to patients and their families, to provide continuing care and support
following such a tragedy as occurred in the case example in Chapter 1. The
patient (or family) who believes that the practitioner's primary concern is
(or was) the patient's well-being is more likely to perceive the
practitioner as having done his or her best.
Fear of malpractice can also lead positively to an appropriate use of
supervisors and consultants. Decisions made by a treatment team obviously
have the potential to reach a better outcome, two heads being better than
one. In addition, the support of other physicians can serve to mitigate
liability in the case of a lawsuit.
Finally, under appropriate circumstances, fear of liability may lead to
improved training, as long as that training does not result in either
instruction or modeling by faculty of excessive defensiveness in the
ordering of tests and use of protective procedures. Ideally, training
should focus on the importance of building a therapeutic alliance with the
patient and of viewing informed consent as a process in which patient and
physician engage in an open dialogue, rather than as merely a signature on
a form.
Perhaps the most far-reaching negative result of fear of malpractice
liability is an alteration in the clinician's stance toward the patient, as
addressed earlier. The focus of clinical practice may shift from the
patient's well-being to legal self-protection. Thus, the physician views
the patient as a legal case posing a certain risk, rather than as a
suffering person in need of care. The physician-patient relationship may be
so transformed as to undermine the alliance entirely, so that the two
parties assume adversarial roles, each trying to protect himself or herself
from the other.
One of the best-known problems arising from defensive medicine is the
increased use of needless tests or overly conservative hospitalization. In
their efforts to protect themselves from lawsuits, physicians often shift
their focus from the patient to the data. The desire for certainty in
making a diagnosis is understandable; however, there is a
point at which the danger and cost of additional tests come to outweigh the
benefits. All tests involve some degree of risk, and for some procedures
that risk is substantial. Thus, the marginal value of further information
may not be worth the increased risk to the patient's well-being.
Furthermore, it is simply impossible to eliminate all uncertainty,
regardless of the number of tests given; often it is unclear whether or not
additional tests will be helpful. Physicians and patients both need to
understand these limits, to acknowledge that judgment calls are required in
medicine as in other professions, and to share-and thus, to tolerate
better-the uncertainty from this limitation. Patients who are misled into
believing that tests can provide absolute accuracy about their health may
be more likely to sue if these tests later fail than those patients who
understand the inherent limits of testing and diagnosis.
In psychiatry a defensive response might include a needlessly low threshold
for involuntary hospitalization, where the patient's liberty and autonomy
are, in essence, sacrificed in favor of conservative practice for the sake
of self-protection.
An extreme example of defensive medicine is abandonment. In this case the
physician decides that the risk of a lawsuit in treating a particular
patient is too great and responds by terminating the relationship entirely:
"dumping" or "turfing" the patient. The bad feelings that such behavior is
likely to engender on the part of the patient may be very strong, and thus
the risk of a lawsuit may increase dramatically in such situations.
The literature as a whole has not addressed the ramifications of fear of malpractice liability in clinical decision making. While we do not have data from the front lines of practice, we did conduct a pilot study to examine these effects. Specifically, we wanted to test the hypothesis that the fear of being sued for malpractice changes the way clinicians deal with patients. In other words, we studied how physicians cope with anxiety and responsibility in cases where malpractice liability is an issue.
We developed questionnaires for administration to clinicians in these areas of practice: surgery, medicine, and psychiatry. For each area, a hypothetical clinical vignette was presented, involving a diagnostic dilemma and a potential tragic outcome. Surgeons were told about abdominal pain and asked about a surgical emergency. Internists were told about angina and asked about myocardial infarction. Psychiatrists were told about a depressed patient and asked about suicide (see Appendix 11.1). Half of the vignettes noted that the patient in question was currently suing a previous clinician. In the other half, there was no mention of a suit. A series of questions followed the vignettes:
-What further information would you require to make clinical decisions?
-Which tests would you order?
-What consultations would you request?
-Would you admit the patient to the hospital for inpatient assessment and
treatment?
-What estimate would you make about the probability of a tragic outcome?
-Would you continue to provide care for the patient?
The questionnaires were administered in two settings: to a group of family
practice residents in Idaho and to a variety of clinicians at Beth Israel
Hospital in Boston, Massachusetts, including residents and faculty in the
departments of surgery, medicine, and psychiatry.
We predicted that those clinicians who were informed that the patient in
question was suing another physician would order more tests, request more
consultations, and be more willing to hospitalize and less willing to
follow patients themselves than clinicians who were not told about a suit.
Respondents requested more information in almost all cases, regardless of whether or not they were told about a suit. However, the type of data requested varied in significant ways. The group of clinicians who were not told about a suit tended to request more information of a psychosocial nature, whereas those who were told about a suit asked for more objective data, requested more consultations, and were more likely to recommend admission. In addition, the clinicians who knew about the suit were most likely to predict a tragic outcome. The two groups of respondents did not differ appreciably in terms of the number of laboratory tests they would order or whether they would continue to provide care for the patient.
We hypothesized that the incidental mention of a suit in a patient's
presentation would increase the perception of a liability threat and that
some signs of defensive practice would be evident in response to that
threat. While this proved true, the differences between the two groups of
respondents were not as dramatic as we had expected. It may be that
clinicians have already been fully sensitized to the threat of malpractice
litigation by previous experience and by exposure to the professional
literature and to the media, and were further alerted by the sparse
clinical data in the vignettes. Practice patterns and clinical decision
making may, therefore, have already been influenced significantly, perhaps
even maximally. Therefore, clinical judgment may not be subject to
provocation by selected information in the hypothetical case.
Nevertheless, more consultations were requested by respondents informed of
a suit. This may reflect a greater wish to share responsibility for the
patient care or even an attempt to avoid responsibility and increase
self-protection. Respondents told of a suit also were more likely to
recommend for admission, perhaps reflecting the desire to cover all bases
and to share, or avoid, responsibility. In addition, estimates of the
probability of a tragic outcome were higher in this group, confirming a
finding described elsewhere (see Chapter 10): clinicians tend to
overestimate the likelihood of tragedy in the face of uncertainty, here
generated by the threat of suit. One might worry that this tendency
decreases investment in the patient or in the success of treatment.
The question about remaining the provider of care yielded interesting
findings: clinicians who knew of a suit were not unwilling to remain
providers of care. Numbers of years in practice and status as a trainee
appeared to be significant factors: almost all residents were willing to
provide continued care, whereas faculty often were not. This finding may
reflect changes in training programs and personal ideals.
In our study, clinicians were asked to make decisions on the basis of
incomplete data. They responded by requesting more data, a reflection of
clinical curiosity, the wish to obtain maximum information before making a
decision, and a desire to see the "full picture" to decrease uncertainty.
The focus of curiosity shifted, however, with the knowledge that the
patient was suing another physician, from psychosocial information to
objective data. This finding highlights a subtle but dangerous form of
defensive practice: by relying on ''scientific'' data, the clinician
retreats to a "legal" distance, perhaps (at an extreme) losing interest in
the patient as a person and, thus, abdicating a clinical position in favor
of a legal one.
As medicine becomes more complex, as diagnoses become both more arcane and
obscure, the average patient will face an increasingly difficult process of
decision making. Even with expert systems and computer-aided diagnostic
procedures the core decisions will be made in a familiar arena-the
doctor-patient relationship. Clinicians must be
taught that good practice is the best antidote to malpractice accusations.
Explicit information about the physician-patient relationship, the
therapeutic alliance, and informed consent must become part of standard
curricula and clinical instruction. The patient's experience of illness and
similar factors must also become part of the doctor's fundamental training.
By diminishing the fear of liability, this instructional process will
mitigate the destructive effects of fear on the physician-patient
relationship.
Public education, too, can play an important role, if carefully addressed
to the limits of certainty, of collaborative decision making, and the
function of informed consent as a dialogue about uncertain outcomes. Such
steps may improve the patient's end of the alliance, with salutary results
as above.
Role playing and hypothetical scenarios, such as those used in our study,
might increase physicians' empathy and perspective taking, which may in
turn foster alliance building. While the essential part of the alliance
does not necessarily derive from the doctor's experiencing what the patient
is experiencing, attempts at altering the doctor's role may be of some value.
An important consideration is the lack of alternatives for patients who
wish to object to the care they receive or its outcome. Litigation is
certainly one way to be heard. But alternative channels might be provided
to draw off the bad feelings in ways that satisfy' patients and influence
physicians but avoid litigation. Such alternatives may shift the focus away
from purely monetary damages and offer pathways for the expression of
legitimate feelings and concerns. Additional advantages may accrue from
no-fault insurance of victim-compensation models, which might clarify'
issues or injury and cost in ways that avoid disproportionate jury awards.
Whether the public will support such changes remains to be seen.