Our principal task in this essay is to show how the three principle parts of health law -- malpractice, bioethics, and health care finance -- are colliding in ways that will require adjustments in legal doctrine. These parts are like neighboring tectonic plates, either with their own central purposes and basic assumptions. For years each part developed quite independently. Recently, however, public policy increasingly has moved the plates into tension, producing seismic potential that has been largely unnoticed.
We demonstrate this through a case study of one tectonic encounter -- a patient who says no to standard-of-care treatment because of its cost and then sues in malpractice when harm results. This conflict springs directly out of health policy’s new mantra, “consumer-directed health care.” For this policy to work, doctors must be able to acquiesce when patients want to say no to save money, but the law of malpractice assumes that the doctor is the director of care. To return to our opening metaphor, these tectonic plates are pressing tighter against each other, and something has to give. Our principal goal is to identify this development so that it can be assessed and managed.
We conclude that law should take at face value any evidence that patients refused treatment. Law should not require special evidence or proof of informed refusal, assumption of risk, or waiver of liability. The doctor must allege and prove that the patient refused treatment, but if the preponderance of the evidence shows actual patient refusal, that should end liability issues arising from the omitted treatments. When patients have not refused a treatment, doctors should still be able to defend themselves (under an accommodating version of the “schools of thought” rule) by showing that they did a decent job considering the resources at hand. This may require expert testimony but avoids requiring that doctors document a specific patient refusal for each omitted item.
This particular set of doctrinal refinements improves the immediate problem, but as our public policy shifts from one paradigm to another to yet another and to a mix among them, similar tremors and eruptions will be inevitable.
Mark A Hall. "WHEN PATIENTS SAY NO (TO SAVE MONEY): AN ESSAY ON THE TECTONICS OF HEALTH LAW" ExpressO
Available at: http://works.bepress.com/mark_hall/2/