Ideology and trust.

• Author: Hall, Mark A.
• Position: Health law - Response to M. Gregg Bloche, Stanford Law Review, vol. 55, p. 919, 2002

1. WHO SAID WHAT

   On first reading, I was taken aback, almost stunned, by Gregg Bloche's response to my article. It opens with a story about betrayal of trust by the physician for his dying mother and it closes with the heart-stopping accusation that I am attempting to "remak[e] health law as a tool for limit-setting by deceit, ... [which] would lead to downward cycles of anger and distrust, with tragic consequences for medicine's healing potential." (1) I wondered, what had I done to prompt this depth of outrage and outpouring of accusation and analysis? Had I forgotten what my own article was about? I immediately reread my article to make sure my memory was not playing tricks on me. Then I reread Bloche's response, several times, and thought long and hard about what is really on his mind. Here is what I've concluded.

   1. What Bloche Said I Said

      Professor Bloche's primary focus is not my article on trust. (2) Instead, he is attacking my prior body of work as part of his larger, ambitious critique of market-oriented health scholars' contractarian approach to health law. He reads the trust article as being a continuation of this prior work, claiming that I'm making a "rebuilt case for contract" and that I am "against most extant and proposed regulatory constraints on market ordering in the medical sphere." (3) My embracing of trust as a guiding light in health law makes me, in Bloche's view, the most menacing of pro-market advocates because he sees in me the threat of a Darth Vader, one who understands the therapeutic force of trust yet intends to use it for dark and evil ends, in league with the likes of Richard Epstein and David Hyman.

      I thought I was doing just the opposite. In my mind, I was making a break from my previous contractarian work (4) and embracing a new perspective on health law. In broad sweep, various camps of health law scholarship arose as different ways to critique the highly paternalistic version of professionalism that prevailed until the 1970s. The major modes of critique and reconstruction have been rights-oriented, market-oriented, and socialistic. As Professor Bloche explains in another, masterful article, (5) the market-oriented perspective has become dominant in the past decade, so the different camps are now focused on it rather than on traditional paternalism. Recently, however, a new, less ideological and less formalistic perspective is emerging, one that does not yet have a name but that might be called enlightened paternalism or therapeutic jurisprudence. It responds to the formalisms of market theory by embracing a more empirically grounded understanding of the phenomenological realities of illness, healing, and medical practice. I thought my article was an attempt to state the basic tenets of such an approach and work through one set of important issues relating to trust. In effect, I felt I was gently tapping on the door of the market skeptics camp, asking if it's possible that we might find some common ground. Bloche slams the door loudly and firmly in my face, saying in effect that "you're not one of us, you're not to be trusted." (6)

      To reach this conclusion, Bloche must work very hard to find or manufacture positions in my trust article that we disagree about. He claims, or seems to, that I think there is too much trust in physicians, that malpractice liability should be vastly scaled back, that medical confidentiality protections are unnecessary, that managed care should not be regulated, and that physicians should engage in "deceit[ful]" and "disingenu[ous]" bedside rationing. (7) He rarely quotes me when he attributes these positions to me, and when he does, it is often to take phrases or observations out of context. (8) More frequently, he reaches these conclusions about my supposed positions by drawing negative inferences from my not having addressed some point he thinks is crucial, by linking together my positions on trust and positions I took in earlier work, and sometimes simply by imagining positions that I can find no basis for attributing to me, (9) other than my association with the contractarian camp.

      I could play the same game by attacking each of the following positions that Bloche ostensibly believes based on the positions of mine that he rejects or critiques: (1) Patients are not to be believed when they say they trust their doctors; (10) (2) trust depends much more on this or that particular provision of law than on the fundamental psychology of illness and the power structure of treatment relationships; (11) (3) physicians should never consider the costs of treatment, and therefore doctors who practice in government health care systems or in most other parts of the world are fundamentally unethical; (12) (4) physicians should constantly remind patients of their conflicting motivations and their personal limitations; (13) and (5) strictly adhering to (3) and (4) is essential for preserving not only trustworthiness but actual trust as a psychological phenomenon. I won't engage in the straw man argumentation of stating and then attacking these supposed positions. Instead, I'll briefly restate what my "core" positions and "central" claims (14) in fact are, as they relate to trust, and then respond in the space allowed to a few of the more important mischaracterizations or misattributions of positions that I did not in fact take.

   2. What I Thought I Said

      Often, intellectual battles are waged over simply which issues are and are not worth discussing and how they should be framed. Just talking about trust puts Gregg Bloche and me on the same playing field. In the view of many adversaries, that's at least half the battle; the rest is just trench warfare over particular points of disagreement. What will surprise the reader, however, is to learn how many of these points Bloche and I actually agree on, among the points I actually intended to make. (15) In the earlier draft of my article that I first shared with Professor Bloche, I summarized its main points as follows, and I still believe this captures a fair and objective assessment of the principal claims that I attempt to defend in the article:

      * Trust is essential and unavoidable in medical relationships. Patients need and want to trust, and without trust medical relationships never form or are entirely dysfunctional.

      * Beyond the mechanics of forming and conducting treatment relationships, trust confers therapeutic benefits by activating nonspecific or self-healing mechanisms, or by enhancing the effects of active therapies. Medical trust has this unique instrumental value because of its strong emotional content, which results from the deep vulnerability of illness that gives rise to trust.

      * Law can (and does) enforce trust-related expectations, punish violations of trust, facilitate the psychology of trust, and undermine trust. These effects occur both through direct regulation and through the law's expressive function and its relationship with social and professional norms.

      * These legal attitudes toward trust sometimes come into conflict because enforcing trust or punishing its violations can also weaken the psychological foundations of trust.

      * Striking the best compromise among competing legal stances toward trust often requires subtlety, complexity, and detailed empirical information about the psychology of trust.

      * Honoring these principles may require that formal legal rights be softened somewhat with the therapeutic reality of trust.

      As far as I can tell from Bloche's response, he does not disagree with a single one of these points as I have summarized them here. At most, he disagrees with how I might apply these principles to particular points of law. However, the purpose of the article was not at all to make those applications. Instead, it was to develop and illustrate these principles with a series of observations about how they are in fact currently actualized in various points of law. Bloche is threatened by these principles because he senses they will lead to results in the law that are inconsistent with positions he reflexively wants to embrace. (16)

   3. What I Actually Said

      1. Trust and law in...