Is law the prescription that can cure medicine?

• Author: Gorovitz, Samuel
• Position: 1996 Baker-Hostetler Lecture

It is a pleasure and a privilege to have this opportunity for endless learning in an environment so rich and so different from my own. I am grateful to Mr. Drinko, to the firm he represents, to Dean Steinglass, and to the faculty of the Cleveland-Marshall College of Law for the honor of being the first non-lawyer to occupy this chair. Not only am I not a lawyer, it is even worse. My training is as a philosopher.

When asked to pick a topic, I first considered two that I had independent reasons to be working on. One was the Food and Drug Administration's regulation of tobacco, a subject I was to address in November. The other was physician assisted suicide, an issue on which I have been working for the New York State Task Force on Life and the Law. I tried to decide between these two issues, and then realized that I ought to address what they have in common. They both raise the question of the role of law in health-related decision making. Thus, I titled this lecture, "Is Law the Prescription that Can Cure Medicine?"

Why even ask such a question? What ails medicine that I should suggest that it is in need of a cure? To answer that question, I have to make a brief historical comment about the development of health care capacities.

Medicine as a human social enterprise is old. It has probably gone on in one form or another for tens of thousands of years. For most of its history, until extremely recently, medical intervention had no significant capacity to achieve its objectives. It is only very recently, primarily in our time--or if one wants to take the long view, since the 19th century, which is just a couple of minutes ago in terms of the development of human history and human social institutions--that medical intervention has had the capacity to achieve a significant proportion of its objectives.

Physicians used to attend to the ailing and the dying with a repertoire of interventions which, viewed in retrospect, we understand ranged primarily from the innocuous to the lethal. Some have claimed, with considerable credibility, that only in our time has medicine on balance done more good than harm. A few even argue that it has not quite gotten there yet Most acknowledge that in times past some medical interventions did help but that much of that help was simply the effectiveness of a caring presence, of the physiological consequences for the patient of trusting in a figure presumed to have powers and authority. Here and there the odd herbal remedy had an active ingredient, some of which we are now identifying. Set against that was all the leeching, bleeding, and administration of toxic substances. It was all relatively simple.

Now medical care has been transformed. We recognize that the human organism is a complex interaction of many different systems--respiratory, circulatory, neurological, digestive, and so on. Some of them can fail and create both problems and opportunities we did not formerly have. One of the opportunities we now have is that we can keep people alive who in an earlier era would not have survived. And one of the problems we now have is also that we can keep people alive who in an earlier era would not have survived. Some of them are kept alive with such diminished capacity that we are not sure that on balance it is what we ought to do. Indeed, often we have the capacity to keep people alive who are sure themselves that it does them no benefit. That one possibility transforms the relationship between physicians and patients. Instead of patients hoping that medical intervention can do for them some part of what they want, patients now confront the question, "How much of what doctors can do do I want done?" That is a new kind of question, and it has changed the distribution of decisional authority. Some cases of physicians wanting to do more than the patients want done have even lead to litigation.

An evolution of models of clinical decision making parallels this transformation in the nature of health care. What I win say next is, as it must be in such a context, something of a cartoon. But, like any good cartoon, it captures a truth. In the older days, meaning until relatively recently, medical decisions were made paternalistically by doctors. Hence the familiar expression, "doctor's orders." That's how it worked. The doctor decided, gave orders, and patients followed them. If they did not, they were accused of failure to be in compliance. It all had a militaristic gestalt. Also note the parallel with traditional family structure where the authority (the father, the male) gives the orders, which are then implemented by the woman (the wife, the nurse) for the dependent (the vulnerable, the patient or child). There is an intriguing isomorphism between these two traditional models.

How many find equally familiar the expression, "lawyer's orders"? That is not so familiar. Yet, assuming your lawyer is competent, if you do not have adequate regard for the advice of your lawyer, bad things can happen. You can lose your property, respect, even your freedom. In the extreme case you can, in the United States, lose even your life. Yet we do not speak of "lawyer's orders." Lawyers just provide advice. There is something instructive in the juxtaposition of these two different professions in their relationship to those they serve.

Over the past three decades that paternalistic model of medical decision-making gave way to a preferred model of autonomous decision-making in which it was initially understood that physicians should provide patients with advice, enabling the competent patient to make the decision about what would then be done. The reasons for that change are multiple. It was partly a reaction to the possible divergence between the aspirations of the doctor and the aspirations of the patient. It is also related to the civil rights movement, the emerging women's rights movement, more aggressive consumerism, and other social phenomena. But physicians, in the face of this pressure to respect the autonomous decisions of their patients, found it frustrating when their patients were not the idealized rational and intellectually deft patients. They were often dysfunctional in any one of a number of ways--perhaps racked with pain, incapacitated by terror, just irrational, or perhaps in various other ways not capable of being the decision makers. So there emerged a third phase in the evolution of medical decision-making: shared decision-making in which the decisional judgment of the physician was required as a supplement to the physician's medical advice. As much decisional authority was still vested in the patient as the patient was capable of handling--but not more than that. This model emerged as the preferred model of medical decision-making probably within the last decade.

Then this hard won autonomy that the patient had in collaboration with the physician started to become unraveled by the relatively sudden and powerful emergence of third party constraints upon decision-making. I refer to health maintenance organizations, insurance companies, risk managers, and managed care managers, all of whom brought to bear on the health care context an independent voice saying, "We understand that the doctor and the patient have agreed that this is how they want it to be, but on advice of our statisticians, or accountants or lawyers, that is not what we will approve."

So, medical decision-making has gone through a complicated multi-layered evolution. Now, in addition to constraints that are internal to health care, there are also the constraints that are emerging from legally mandated or regulated policies.

As all of this was happening, medical progress proceeded apace. I have mentioned...