Relational Malpractice and the Transformation of Healthcare Law

Sagit Mor, University of Haifa
Orna Rabinovich-Einy, University of Haifa

Abstract

Legal scholarship in recent decades has devoted considerable attention to the "malpractice crisis." However, the vast majority of this literature has overlooked the essence of the problem. Mainstream legal writing on malpractice has tended to frame the problem as either an insurance crisis or a litigation crisis. In this article, we offer an alternative understanding of the nature of the current malpractice predicament: the decline of the doctor-patient relationship. We highlight the fact that contemporary doctor-patient interactions resemble a battle zone: a majority of physicians view "every patient as a potential malpractice lawsuit," while patients complain that their physicians are driven by financial incentives, treat them insensitively and fail to provide honest and full information. We find that these dynamics have colored the entire doctor-patient relationship, extending well beyond the discrete instances in which a medical error has occurred. The framing of the problem in terms of relationships paves the way for a paradigm shift in the medico-legal analysis of malpractice specifically and of healthcare law more generally through the adoption of a relational approach.

On one level this paper offers a fresh approach to malpractice reform highlighting the limitations of current approaches, which have failed to frame the problem and solution in terms of a relationship crisis. Therefore, in order to improve doctor-patient relations we need to do away with the malpractice system and the negligence regime on which it is based, by adopting a No Fault based liability scheme. Past proposals for the adoption of a no-fault regime have failed to garner the requisite political support and have neglected the potential of such reform to rebuild relationships. We offer a new justification for the shift to no fault: the transformation of doctor-patient relations, and, consequently, the reduction of medical errors and enhancement of patient safety. We delineate the contours of such an alternative and the required conditions for its success in improving the overall quality of healthcare. With the new healthcare reform legislation which mandates pilot projects along these lines, we believe the time is ripe for states to experiment with such regimes.

On a deeper level, the article uncovers a fundamental organizing principle for healthcare law more generally—the centrality of relationships, most notably the doctor-patient relationship. As we show, the theme of relationships cuts across various controversies and debates that dominate the field and is central to the medical profession’s own understanding of high quality medical care. Nevertheless, legal writing has largely neglected the role of relationships in healthcare law. The suggested relational approach to healthcare law contributes to the current effort to characterize the field and draw its boundaries, and allows for imaginative solutions for pressing problems to emerge.