INTRODUCTION: A THERAPEUTIC APPROACH TO HEALTH CARE LAW
In Search of a Uniting Theme
Scholars have long noted that the field of health care law lacks cohesion. They speak in terms of the "pathologies" of health law, or its contradictory and competing "paradigms," which constitute a "chaotic, dysfunctional patchwork." (1) This conceptual disarray exists because, unlike other areas of law, no unifying principle or animating concern has yet been identified for the law of health care delivery. (2) For example, family law is concerned with rights and obligations arising from intimate relationships, environmental law is built around a set of core statutes, and intellectual property law applies general property principles to intangible constructs. The field of health care law, in contrast, is largely a creature of happenstance. As currently taught and studied, it consists of disparate areas of law and regulation that happen to apply to doctors, hospitals, and health insurers, categorized by the concerns that happen to have arisen in different decades. (3) At first glance, this is hardly a more cohesive body of law than a law of horses, as Judge Easterbrook once quipped about cyberlaw: "Lots of cases deal with sales of homes; others deal with people kicked by horses; still more deal with the licensing and racing of homes, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on `The Law of the Home' is doomed to be shallow and to miss unifying principles." (4)
It would be far more satisfying and enriching to find an organizing principle that not only makes the disparate parts of health care law cohere, but also distinguishes health care law from other bodies of integrated legal thought. (5) For a body of law to emerge as a distinctive field of practice and intellectual inquiry, it must be more than just the assortment of rules that result from applying other bodies of law to a particular economic sector or human activity. Health care law is not substantively distinctive unless there are one or more attributes of the medical enterprise that make it uniquely important or difficult in the legal domain, attributes that give rise to a set of novel and interrelated principles that deserve to be classified as a coherent and integrated academic and professional discipline.
A skeptic might claim that health care law exists only because it happens to fit an area of legal practice and therefore is justified by the economy of law school curricula. However, scholars in the field sense there are one or more unifying themes that are uniquely important to the field. The trouble so far is that each theme applies only to portions of the field and neglects certain central concerns. For instance, Rand Rosenblatt and Clark Havighurst advance competing principles of social justice and economic efficiency, (6) but these apply primarily to issues of insurance coverage, institutional structure, and the proper scope of government regulation, and not as extensively to relationships between individual patients and physicians. George Annas and others employ concepts of individual autonomy and dignity to address a broad range of patient care issues, (7) but these principles have only limited application to the macrolevel issues that are now so pressing in health care public policy. Consequently, Einer Elhauge convincingly argues that health care law is afflicted by a "pathology" consisting of competing and irreconcilable themes and principles borrowed haphazardly from other fields, "which in combination result in an incoherent legal framework." (8)
It would be naive to think that there is a single conclusive resolution of this fruitful debate. However, it is possible to formulate a thematic orientation that has broader and more fundamental relevance to many areas of health care law. This Article is an initial effort to articulate such a theme, using the somewhat grandiose concept of "therapeutic jurisprudence," adapted from mental health law. (9) The Article provides only a brief introduction to the broader theme, however, in order to develop more fully a particular application of therapeutic jurisprudence, namely, the role that trust plays in the structure and content of health care law.
Therapeutic jurisprudence, first developed by David Wexler and Bruce Winick in the field of mental health law. (10) asks what legal principles are most beneficial to patient welfare and consistent with the actual experience of being sick. This phenomenological legal perspective contrasts with other organizing principles that have a more formalistic orientation. Therapeutic jurisprudence invites us to think instrumentally and empirically about the law, rather than in terms of intrinsic rights or a priori principles. (11) But, unlike other behavioral, economic, or social science perspectives, which consider multiple versions of social welfare or individual utility, therapeutic jurisprudence examines how law affects the therapeutic goals of a treatment relationship. (12) This approach is behaviorally, socially, and empirically complex and sophisticated. Therapeutic jurisprudence focuses specifically on the actual experience of being ill and seeking care, rather than assuming the patient is a prototypically healthy and competent adult engaged in a fairly generic transaction or relationship.
So far, work in the therapeutic jurisprudence vein has been concentrated in the field of mental health law, focusing on issues such as confidentiality, refusal of treatment, competency determinations, and commitment proceedings. (13) Even when therapeutic jurisprudence has expanded beyond this field, it has still continued to focus on the mental health consequences of the law in other fields, such as criminal or family law, or dispute resolution. (14) As a result, the tenets of therapeutic jurisprudence have not been applied to most of the major issues in health care law.
It is obvious that law has therapeutic consequences meriting study when, for instance, it affects the behavior of physicians or the availability of treatment. Beyond these fairly prosaic applications, the notion of law as a therapeutic agent can advance the understanding of how law might affect the more subtle and subjective aspects of medical care that are revealed, for example, in the powerful placebo effect or the growing popularity of alternative medicine. Applied in a more thoroughgoing fashion, therapeutic jurisprudence analyzes health care law from a phenomenological perspective, focusing on patients' actual experiences in their relationships with physicians and other care providers, hospitals and other facilities, insurers and health plans, and various government agencies. Relationships among and within these components of the health care delivery system (doctor to hospital, hospital to insurer, government to profession, etc.) also can be viewed from a therapeutic perspective by considering how these internal or overarching relationships affect patients' experiences in the delivery of care.
The effects of law on care delivery can be studied in both an immediate and mechanistic fashion and in a more psychologically and socially complex way. The straightforward applications of therapeutic jurisprudence ask whether regulatory, market, or liability rules embody scientifically accurate or socially optimal medical practices. The more complex inquiries ask how law shapes behavior and affects outcomes through less obvious or direct mechanisms. For instance, this Article examines how law influences the social and psychological dimensions of personal relationships and institutional structures in medicine. This approach is in line with the burgeoning academic interest in expressive theories of the law, the interaction of law and social norms, and the "new Chicago school" of socio-behavioral law and economics. (15)
The focus on therapeutic goals may strike some as unjustified or too parochial, (16) and in fact other proponents of therapeutic jurisprudence have disclaimed any consequentialist normative agenda. (17) This agnosticism may be appropriate in other areas of law, such as criminal or family law, which are driven by different sets of concerns. However, therapeutic goals should be primary considerations in a body of law that arises from and governs a common enterprise whose central objective is individual health and well being. Certainly, the same point might be made about any field of law defined by a common enterprise, such as banking law or education law, but the point has even greater force in light of the intrinsic and universal importance of health.
A Focus on Trust
It would consume many pages even to sketch a general account of such a theoretically and empirically ambitious approach to health care law. Rather than undertake such an endeavor, I present here a particular application of a therapeutic approach, one that systematically examines the psychology of trust in medical relationships. One could look at satisfaction, communication, or other personal and subjective features of treatment relationships, or one could examine various, more objective aspects of treatment such as length or number of visits, adherence to physicians' recommendations, or the effectiveness of treatment measured through quantifiable and observable outcomes. I focus on trust because it has been comparatively neglected both in law and in the broader study of health care delivery, and because the psychology of trust has such a pervasive influence on all other dimensions of medical relationships.
Discussions of trust and related concepts were commonplace in medical ethics prior to the 1970s, (18) when medical law was still in its infancy and medical ethics was focused on issues of professionalism. With the rise of patient-centered bioethics, however, the core value of preserving trust was replaced with...