1
Relational Malpractice
RELATIONAL MALPRACTICE
AND THE TRANSFORMATION OF HEALTHCARE LAW
Sagit Mor and Orna Rabinovich-Einy
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.
 Assistant Professor, University of Haifa, Law Faculty. LL.B. Tel Aviv University, LL.M. New York
University, J.S.D. New York University. Director of the Law and Health LL.M. Program at the Haifa Law
Faculty.

Assistant Professor, University of Haifa, Law Faculty. LL.B. Tel Aviv University, LL.M. Columbia
University, J.S.D. Columbia University. Guest editor of the 2011 Law & Contemporary Problems' volume
on ADR in healthcare. Director of the Law and Technology LL.M. Program at the Haifa Law Faculty.
[ADD THANKS]
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Relational Malpractice
Contents:
I.
II.
Introduction
Relational Healthcare Law
A. Situating Malpractice Within Healthcare Law
B. The Search for Coherence in Healthcare Law
C. Adopting a Relational Approach to Healthcare Law
III.
The Centrality of the Doctor-Patient Relationship under a Relational Approach
A. The Nature of the Doctor-Patient Relationship
B. The Benefits of a Collaborative Doctor-Patient Relationship Model
C. The Law as a Barrier to a Collaborative Doctor-Patient Relationship
IV.
Doctor-Patient Relationship in the Shadow of Malpractice
A. Consumed by Malpractice: Doctor-Patient Interactions as a Battle Zone
B. The Sources of Current Tensions in Doctor-Patient Relations
C. Partial Measures for Improving Doctor-Patient Interaction
V.
No Fault as a Means for Transforming the Doctor-Patient Relationship
A. The History of the No Fault Alternative: From Compensation to Learning
B. Relationships as a New Justification for No Fault
C. Designing An Alternative with Relationships in Mind
VI.
I.
Conclusion
Introduction
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. So far, mainstream legal writing on malpractice has tended to frame the problem
as either an insurance crisis or a litigation crisis.1 The insurance crisis claim focuses on
the rise in professional insurance premiums as a result of exceptionally high awards, while
the problem of litigation stems from the ills of the court system—its high costs,
unpredictability and the distorted incentives it provides. In this article, we offer an
1 In the last decade a third approach has emerged, emphasizing safety and error prevention. This
approach has emerged from the medical setting and has permeated the writing on medical errors which
focuses on public policy and institutional responses. However, it has yet to infiltrate mainstream legal
scholarship. For a discussion of this approach, see infra Part IV.A.
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Relational Malpractice
alternative understanding of the true nature of the malpractice predicament: the decline of
the doctor-patient relationship. 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 the solution
in terms of a relationship crisis. 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, such as bioethical
dilemmas, informed consent and managed care, and has played a central role in the
medical profession’s own understanding of what lies at the core of high quality medical
services. The relational approach we adopt can contribute to the current efforts to
characterize the field of healthcare law and draw its boundaries. So far, however, legal
writing on healthcare law has largely neglected the role of relationships, focusing on other
complementary themes, such as trust, that have historically characterized the field.2 While
legal scholarship has rightly contributed to the disenchantment with old style professional
medical paternalism, it has also been active in hampering the development of a viable
alternative.
We offer a relational understanding of malpractice, which highlights the fact that
contemporary doctor-patient interactions resemble a battle zone: Most physicians view
"every patient as a potential malpractice lawsuit,"3 while patients complain that their
physicians are driven by financial incentives,4 treat them brusquely and fail to provide
honest and full information.5 Our findings reveal that these dynamics have colored the
2
See infra Part II.B.
See Michelle Mello et al., Caring for Patients in a Malpractice Crisis: Physician Satisfaction and
Quality of Care, 23(4) Health Affairs, 42, 49 (2004).
3
4 See Jonathan Todres, Toward Healing and Restoration for All: Reframing Medical Malpractice
Reform, 39 CONN. L. REV. 669, 689 (2006) (citing research findings according to which “82% of
respondents believed that medical care had become a big business and that the industry put profits
ahead of patients.”)
5 Indeed, litigation by patients in the aftermath of a medical error is often triggered by the failure of
the healthcare team to provide information on the occurrence, and is pursued in the hope that such
litigation will drive healthcare providers to transmit such information. See infra note 187-191 and
accompanying text. Todres has described these dynamics as fostering “an ‘us vs. them’ environment that
pits doctors against patients and the community” (see Todres, supra note 4, at 691).
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Relational Malpractice
entire doctor-patient relationship, extending well beyond those discrete instances in which
a medical error has occurred. While physician communication patterns have typically been
tied to longstanding professional and organizational cultures, our research uncovers the
role the law has played in cutting off communication channels between providers and
patients. These developments have permeated the entire web of relations in the healthcare
arena, but most notably the doctor-patient relationship, the major relational axis in this
context.
Our relational approach draws on the existing medical literature, which has long
acknowledged the importance of the doctor-patient relationship as a fundamental
component in the provision of healthcare services. Such literature has recognized the
malpractice context, acknowledging the links among relationships, errors, and quality, and
underscored the significance of a collaborative doctor-patient relationship for the quality of
medical services delivered. We define a “collaborative relationship” as one that is premised
on a mutual, open and cooperative discourse. Such a mode of interaction has been linked
with enhanced physician ability to draw relevant medical information from patients,
greater motivation by patients to seek treatment and to adhere to treatment, and increased
patient satisfaction. Despite these findings, the dominant model of doctor-patient relations
has been a defensive, hierarchical and closed mode of communication, which we refer to
as "oppositional."
Current research on the doctor-patient relationship proves that the existing malpractice
regime does not allow for a collaborative relationship to evolve. To the contrary, it harms
the doctor-patient relationship by providing disincentives for open, free flowing
communication by breeding distrust, conflict and defensiveness. Specifically, these studies
have disclosed the manner in which torts law has shaped doctor-patient communication in
the aftermath of an error: Doctors are driven to cut off communication following an
adverse event, failing to supply patients and family members with basic information and
emotional support. Paradoxically, this has actually motivated patients to sue their doctors,
as research findings show that patients' decisions to sue are connected to their interaction
with their healthcare providers rather than the pursuit of monetary compensation.6 Our
research uncovers the deeper and more elusive nature of the impact of torts law on the
doctor patient relationship, extending well beyond the moment of error and resulting in an
6
For extensive research supporting this point, see infra note 155 and accompanying text.
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Relational Malpractice
overall relationship crisis. Such crisis has hampered doctor-patient communication along
the entire continuum of care and has reduced the quality of healthcare services. Based on
the above findings, this article advances the view that the law governing medical errors
should adopt a relational perspective. The implications of such an approach are twofold.
First, adopting
a relational approach would
entail examining the
impact legal
arrangements have on the doctor-patient relationship and the web of relations that
surround it. Second, a legal regime concerned with relationships would promote a
collaborative model of doctor-patient relationships.
Efforts to transform the malpractice regime have taken the following principal forms:
piecemeal tort reform, contractual liability, apology laws and disclosure conversations, and
no fault liability schemes. In our article, we explain why none of the first three options can
be expected to bring about a real transformation in the doctor-patient relationship and opt
for the adoption of a no fault administrative regime. While the no fault alternative is by no
means new, former proposals have sought to advance different goals. Earlier proposals
focused on just compensation based on the larger pool of claimants and a better screening
process for just complaints. Over time, a different justification has emerged focusing on
error prevention and patient safety through systemic learning about the sources of errors.
Learning would be facilitated by the removal of individual blame. A principal problem with
these proposals was that they were unsuccessful in garnering the requisite political
support. However, the recent Healthcare Reform grants project, which calls for the
development of alternative liability schemes, may alter the political economic climate,
generating a broader support-base for such reform and setting the stage for states to
experiment with such regimes. No less important in our view is the fact that existing calls
for adopting no fault schemes have failed to address the broader connection between
medical errors and the doctor-patient relationship. Consequently, they have also failed to
spot the root-cause of the crisis as well as the opportunity to address it effectively.
Our relational approach brings to the fore a new justification for the shift to no fault: the
transformation of doctor-patient relations and a corresponding reduction in medical errors
and enhancement of patient safety. This alternative assigns weight to the empirical
findings on the connection between the doctor-patient relationship and quality of
healthcare. Such reform would require setting the cultivation of collaborative relations as a
goal, expanding the pool of disputes handled systematically, and establishing broad
criteria for learning that cover the domain of relationships. This would allow for a more
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Relational Malpractice
open and rigorous inquiry into the causes of medical errors, as well as lower conflict levels
that are often a diversion for healthcare providers and serve to reduce patient trust.
The significance of the new justification stems from the following: (1) it highlights the fact
that the harm created by the current malpractice regime extends beyond the occurrence of
medical mistakes infiltrating a broad range of physician-patient interactions, (2) it provides
a more comprehensive explanation for the ways in which a no fault alternative can
enhance prevention of medical errors, and (3) it more effectively addresses some of the
critiques voiced against the no fault alternative in light of the cost savings and enhanced
learning that will emerge from the study of a broader dispute base. We therefore argue that
a transformation in the nature of doctor-patient relations can only be achieved by
displacing the current malpractice regime and adopting a no-fault based solution centered
on relationships.
The paper proceeds to examine its principal theses as follows: Part II situates malpractice
within the broader framework of healthcare law and delineates the contours of a relational
approach to healthcare law-related issues. In Part III we establish the doctor-patient
relationship as a central theme in healthcare law in general and in the malpractice area in
particular. Part IV portrays the current state of doctor-patient relations as a battle zone,
and underscores some of the historical sources that have contributed to the combative
nature of the interaction between healthcare professionals and patients. We show that
targeted efforts to transform such interaction have had a limited effect at best. In Part V
we present the no fault alternative, highlighting the novelty of the relational justification
presented in this article for choosing this particular regime: the need to do away with the
malpractice system in order to improve doctor-patient relations. We then explain why the
adoption of a no fault system for compensating victims of medical errors would not only be
a better avenue for redressing such patients and preventing future mistakes, but also for
bringing about a deep change in doctor-patient interaction. We conclude with some
thoughts on the potential of a relational approach to malpractice to serve as a blueprint for
a more radical transformation of the way we think about the field of healthcare law.
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Relational Malpractice
II.
Relational Healthcare Law
A.
Situating Malpractice Within Healthcare Law
The literature on malpractice has tended to either address the issue in an isolated manner
or to locate it within the area of torts law.7 It is our contention, however, that malpractice
should be situated within the context of healthcare law.8 Healthcare law is a rapidly
growing field that governs the provision of medical services by individual and institutional
healthcare providers in various contexts and the receipt of such services by individuals
and communities. Healthcare law encompasses a wide array of issues, including access to
health care and scope of coverage (from health insurance to demographic disparities),
managed care and the operation of HMOs, medical malpractice, informed consent rules,
bioethical dilemmas (from beginning to end of life), genetics and technology, and more.9
These issues cut across legal subject matters, including torts, contracts, antitrust, family,
labor and corporate law.10
By confining the discussion on medical errors to the realm of torts, the issue has been
understood as yet another instance of professional negligence. The broader healthcare law
perspective is necessary in order to fully understand the problems associated with the
current malpractice regime and the ramifications of reform proposals. However, the
implications of recognizing healthcare law as a field extend beyond malpractice, creating a
conceptual bridge across diverse areas of law, often treated, like malpractice, as isolated
issues.
7
M. Gregg Bloche, The Emergent Logic of Health Law, 82 S. CAL. L. REV. 389, 394, 416-417 (2009).
8 For similar views, see Bloche, id., at 462-470; Mark A. Hall, The History and Future of Health Care
Law: An Essentialist View, 41WAKE FOREST L. REV. 347, 361 (2006) (noting that “the core of academic
health care law consists of those aspects of law for which the unique features of medicine are central to
the analysis of inquiry, rather than medicine simply being an incident of generic law’s subject matter”);
Todres, supra note 4, at 669. Todres also addresses the unique nature of the doctor-patient relationship
distinguishing it from “other interactions governed by tort law” (id., at 733).
9 See, e.g., Hall, Essentialist View, supra note 8, at 348-354 (reviewing the evolution and expansion
of the field in terms of subjects of interest).
10 Einer R. Elhauge, Can Health Law Become a Coherent Field of Law? 41 WAKE FOREST L. REV. 365,
368, 371-372 (2006)..
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Relational Malpractice
B.
The Search for Coherence in Healthcare Law
The question of whether healthcare law constitutes a coherent field is far from settled.
While some authors have underscored the field’s chaotic nature, emphasizing its lack of
coherence or shared structures, others have searched for a single unifying theme for the
field.11 In our view, the growing literature searching for overarching themes in this area
and the vibrant debates that surround it indicate substantial support for the position that
there is a “there” there.12 Specifically, four primary paradigms for the field are commonly
discussed: market, professional, moral and political frameworks.13 These themes represent
the prevalent understandings of the field in recent decades and the forces that drive its
evolution.
The professional paradigm is the traditional framework that gave absolute primacy to the
medical profession's views and practices in decision making regarding individual treatment
and general policy.14 This "doctor knows best" paradigm was rooted in an authoritarian
hierarchical style of doctor-patient relationships, usually described today as paternalistic
(sometimes mentioned as “priestly” or “parental”15). Under this paradigm the law willfully
withdrew from the medical sphere, leaving it to self regulation by the profession which
11 Bloche, supra note 7, at 397-416 (2009); Mark A. Hall, Law, Medicine, and Trust, 55 STAN. L. REV.
463, 464-466 (2002-2003); Einer Elhauge, Allocating Health Care Morally, 82 CAL. L. REV. 1449, 14521544 (1994). For a view that fully rejects the attempt to find coherence in the field, see Henry T. Greely,
Some Thoughts on Academic Health Law, 41 WAKE FOREST L. REV. 391 (2006).
See Mark A. Hall & Carl E. Schneider, Where is the “There” in Health Law? Can it Become a
Coherent Field?, 14 HEALTH MATRIX 101 (2004); Elhauge, supra note 10; Bloche, supra note 7; Hall,
Essentialist View, supra note 8, at 354-356 (2006); George J. Annas, Health Law at the Turn of the
Century: From White Dwarf to Red Giant, 21 CONN. L. REV. 551 (1989). One reason to acknowledge that
there is such a legal field as health law is the concern about the consequences of not doing so. As Bloche
has persuasively argued: “With no comprehensive health policy to guide them, judges tended to
pursue doctrinal integrity within disparate areas of law. In so doing, they not only sacrificed the
goal of system wide rationality in the health sphere; they added to the national health-policy
disarray” (M. Gregg Bloche, The Invention of Health Law, 91 CAL L. REV. 247, 250 (2003) (cited in Hall,
supra note 11, at 465 & n.5).
12
13 These four themes were originally identified by Elhauge in his 1994 piece (Elhauge, supra note
11, at 1542-1544). The four themes were further developed in Elhauge’s subsequent work (Elhauge, supra
note 10) and were adopted by other scholars (see Bloche, supra note 7, at 408-415; Meir Katz, Towards a
New Moral Paradigm in Health Care Delivery: Accounting for Individuals, 36 AM. J. L. & MED. 78, 84 (2010).
Parallel to those four paradigms we find the four groups of concerns in health law: quality, autonomy,
access, and cost (Hall, Essentialist, supra note 8, at 353). Obviously, there are other overarching themes
of the field. One example is the social justice framework (Hall, supra note 11, at 465).
14
Elhauge, supra note 10, at 372-377, 382-383.
Ezekiel J. Emanuel & Linda L. Emanuel, Four Models of the Physician-Patient Relationship, 267
JAMA 2221, 2221 (1992).
15
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meant surrendering legal judgment to medical expertise, with pockets of interventions in
such cases as mental health law.16
The moral paradigm promoted the insertion of modern moral values into medical
discourse.17 The growing interest in moral philosophy was related to the flourishing of
bioethics following World War II. The values that were promoted along the years were
autonomy and related principles, including liberty, privacy, and consent, voice and human
dignity.18 Later on, access to healthcare became a second realm of interest, encompassing
issues such as social justice, human dignity, egalitarianism, and the right to health.19 The
moral paradigm granted power to philosophers and the imagined moral community.20 It
allowed more space for the individual patient, her experience and wishes, thereby
undermining the omnipotent image of the doctor and the primacy of scientific medical
knowledge. This development was supported by the rise of the patients' rights movement
and transformed the field of medical ethics and areas such as informed consent,
informational privacy, abortion policy and the right to die. The law was a major instrument
in the hands of those supporting the change and their efforts to place limits on the powers
of individual healthcare providers and on medical institutions.
The market paradigm evolved during the 1970s with the introduction of the economic
prism to the field of healthcare.21 The economic logic is based on a cost-benefit analysis in
the provision of medical services, thereby contributing to the erosion of the primacy of
"pure" medical knowledge and considerations. This development also shifted the status of
the patient as the center of treatment as questions of cost, efficiency, and affordability took
center stage. At the same time it enhanced the image of the patient as a rational,
autonomous and fully informed player who is capable of promoting his or her own self
interest, thereby empowering her in a new way, which focuses on agency and free choice.
16 Elhauge, supra note 10, at 372. In the realm of malpractice this was evidenced in the adoption of
professional standards as the basis for assessing reasonable conduct. Id., at 371-372.
17
Elhauge, supra note 11, at 1458.
18 Elhauge, id. (focusing on autonomy and consent); Katz, supra note 13, at 108-109 (emphasizing
voice and human dignity); Hall, supra note 11, at 464 & n.3
19 Elhauge, id.; Katz, id.; JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (1984); GEORGE J. ANNAS,
THE RIGHTS OF PATIENTS (3rd Ed. 2004).
20
Elhauge, id., at 1458.
21 Bloche, The Invention, supra note 12 (providing a detailed review of the rise of the market
paradigm and its impact on the field as well as a comprehensive critique of the dominance of the
economic logic in healthcare law); Elhauge, supra note 10, at 382.
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Under the market approach the patient becomes a consumer and health services become a
commodity, a good to be exchanged between buyers and sellers. The rise of the market
paradigm made resource allocation a central issue in healthcare and presented the
troubling tension between cost and quality, at times placing physicians in a conflict of
interest. Over the years, the market paradigm has become the dominant framework
governing healthcare law.22
The political paradigm emerged as a response to the supremacy of the market paradigm.
State and federal political organs began taking a more active role in the healthcare arena
following the growing resistance of providers and patients to the centralized nature of
managed care organizations’ decision-making and to the dominance of economic
considerations.23 The political paradigm assumes that a collective decision-making process
is the best way to govern the realm of healthcare.24 The rise of the political paradigm can
be seen in the adoption of legislation which constrains managed care decision-making
authority on such matters as hospital discharge of certain patients,25 and the inclusion of
“gag orders” in their contracts with providers.26 The political avenue was envisioned as a
solution to the deficiencies of the market paradigm, but has come with its own set of
weaknesses, most notably a slow and cumbersome pace, and the power and knowledge
disparities that exist among the various actors and interest groups who are involved in
and affected by the political process.27
In recent years, the writing on the essence of healthcare law has changed. Some scholars
have moved away from the search for a unifying theme, looking instead for a common
method that would allow for the various themes to compete with one another, sustaining
Bloche, supra note 7, at 408; Bloche, The Invention, supra note 12, at 253-254; Peter D.
Jacobson, Soniya Keskar Mathur, Health Law 2010: It's Not All About The Money, 36 AM. J.L. & MED. 389
(2010). But see Elhauge, supra note 10, at 372-378 (arguing that the market paradigm has failed to gain
dominance and that the professional approach continues to rule).
22
Elizabeth Price Foley, The Evolution of Health Care Decision-Making: The Political Paradigm and
Beyond, 65 TENN. L. REV. 619, 646 (1998).
23
24
Elhauge, supra note 10, at 384-385.
25
Foley, supra note 23, at 626-628.
26
Id., at 628-630.
27 Elhauge, supra note 10, at 384. This is perhaps most evident in the unsuccessful efforts to
substitute the current negligence-based malpractice regime with a no fault alternative. See detailed
discussion in infra Part IV.A.
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the field’s vibrant nature.28 One such proposal by Einer Elhauge has suggested a
“comparative method” that mandates the consideration of specific healthcare law issues
through multiple perspectives, while assigning each theme the appropriate weight in light
of the context at hand, without being a priori committed to any of these themes.29 Most
recently, another proposal by Gregg Bloche has described the logic of healthcare law as
that of an emergent system – “a system with a design that arises from ongoing feedback
among [its] scattered deciders.”30 Under this view, the contradictions that currently
characterize healthcare law are not perceived as a weakness but rather as an “opportunity
for mutual feedback among component systems that constitute health law.”31 The
immediate implication of adopting such a view would be “a shift from linear pursuit of
specific policy objectives to a quest for evolutionary pathways toward reformers' [quest for]
ultimate efficiency, equity, and other goals.”32
At the same time, scholars have also offered the concept of “relationships” as a possible
organizing principle for the field, drawing on the centrality of the doctor-patient
relationship and the complex web of relations within which it is situated.33 This line of
literature draws on relationships both for explaining the connections that exist between
the topics that fall under such heading and for justifying healthcare law’s very labeling as
a “field.”34 In 2004 Hall & Schneider proposed “an analytical framework that views health
28 See Hall, supra note 8, at 357 (describing this development, but rejecting it as a pragmatic
method that is not unique to healthcare law).
Elhauge, supra note 10 (arguing that “what matters is not so much the conclusions one would
draw from using such a comparative paradigm methodology, but, rather, that this would provide some
common methodology for discussing and disputing health law issues.” Id., at 379).
29
30 Bloche, supra note 7, at 422. Bloche contends that “the law of health care provision and the
health care system itself are best understood and acted on as emergent systems. This understanding
comes to terms with health law's seeming chaos—its emanation from disconnected regulatory and judicial
decision makers, and from myriad, separate doctrinal spheres. As with all emergent systems, these many
inputs interact in unpredictable ways, clashing with, reinforcing, and reacting to each other. No one actor
is in position to sort out these influences. No one actor takes a grand overview. There is no center of
command and control. The health care policy this system produces is the sum total of these inputs and of
mutual adjustments by stakeholders and decisionmakers.” Id., at 396.
31
id., at 424.
32
Id., at 397.
33 The roots of the turn to relationships can already be found in 1985, when the American Society of
Law and Medicine Task Force on Health Law Curricula developed an alternative thematic structure for
Health Law textbooks, one which emphasizes “relationships in health care between and among patients,
physicians, institutions, and government.” (see Hall, supra note 8, at 353). However, this development did
not result in a substantial change in the “standard conception” of the field. (id.)
34
Elhauge, supra note 10, at 369-371; Hall & Schneider, supra note 12, at 103.
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care law as a law of relational webs rather than a law of transactions.”35 The transactional
perspective was criticized for taking “the atomistic view that each medical encounter is a
discrete event rather than part of an on-going web of relationships.”36 It was contrasted
with a relational perspective, which “views medical encounters more holistically, as part of
a larger context formed by the parties' interactions with each other and their relationships
with other individuals and institutions.”37 Following Hall & Schneider, Elhauge has
contended that what makes healthcare law a legal field is that it “address[es] the legal
treatment of a distinct set of relations,” which he described as the “unique set of relations
among persons involved in the treatment of health problems.”38
The question remains how such recognition of the importance of relationships in
healthcare law translates into legal analysis of healthcare related issues. For Elhauge it
seems that the question of relationships remains merely conceptual with no practical
implications that affect his analysis of a particular problem.39 Hall took a different path,
advancing trust as a new overarching theme for the entire field and arguing that “without
trust medical relationships never form or are entirely dysfunctional”40 and that “trust is
the core, defining characteristic of the doctor-patient relationship – the ‘glue’ that holds
the relationship together and makes it possible.”41 Hall contends that trust is a concept
that is relevant to the entire field of healthcare law42 and illustrates this through detailed
examples. Although Hall acknowledges the embedded tension between trust and “old-style
paternalism,”43 his work is still open to criticism for his understanding of trust, which is
based on patients’ absolute faith in the system. As one commentator has argued, such an
35
id.
36
Id.
37
Id.
Elhauge, supra note 10, at 369 (concluding later that modern health law is in fact the “complex
web of relations that affect our health” (Id., at 370), and suggesting that those relations extend beyond the
classic doctor-patient relationships and include “the relations of patients to hospitals, insurers,
employers, and the government, as well as a complex web of relations between all those and physicians”
(Id).
38
39
Id., specifically at 370.
40
Hall, supra note 11, at 470.
Id. Our work focuses on the doctor-patient relationship but departs from Hall’s focus on trust in
several respects, as this article shows. Most importantly, we focus on communication as the fundamental
component of the doctor-patient relationship and advance a particular model of doctor-patient
relationship, which is the collaborative model.
41
42
Id., at 466.
43
Id., at 469.
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approach encourages patients to be compliant and docile rather than sophisticated rightsbearing consumers.44
Our approach reflects an understanding of healthcare law as a complex, multifaceted area.
We share the view that a holistic integrative approach which combines the various themes
that appear in the literature and which allows for contradictions to coexist, correctly
captures the essence of the field. At the same time, we draw on the literature that has
singled out relationships as a principal theme for the field, and elaborate on the contours
of a relational approach to healthcare law.45
C.
Adopting a Relational Approach to Healthcare Law
The relational understanding of healthcare law that we advance in this article carries two
related implications: It emphasizes the centrality of relationships in the operation of
healthcare law, and calls for a contextual and relational analysis. The first aspect of the
two comports with relational theory of law in that it places relationships at the core, and
seeks to nurture and protect them by instilling an “ethics of care” and such values as
connectedness, interdependence, responsibility, and solidarity.46 The emphasis on
relationships and related values is contrasted with the law’s tendency to produce atomistic
social relations in which every actor advances her own interest and eventually becomes a
“lone rights bearer,”47 stifling opportunities for meaningful interaction.48
44 Robert Gatter, Faith, Confidence, and Health Care: Fostering Trust in Medicine through Law, 39
WAKE FOREST L. REV. 395, 397 (2004). See also Elhauge, supra note 10, at 375-377.
45 Of course, we do not view relationships as the exclusive organizing theme of the field. For a
similar approach that views relationships as one of several essential components of health care law, see
Hall, supra note 8, at 358.
46 The notion "ethics of care" was introduced and developed in Carol Gilligan’s renowned work:
CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT (1982). Gilligan’s
argument was later expanded to additional realms, including law and moral philosophy. See Robin West,
Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988) (stating that “[w]omen’s concept of value revolves
not around the axis of autonomy, individuality, justice and rights, … but instead around the axis of
intimacy, nurturance, community, responsibility, and care,” id., at 28); SHEILA BENHABIB, SITUATING THE
SELF: GENDER, COMMUNITY AND POSTMODERNISM IN CONTEMPORARY ETHICS (1992). Chapter 5 in Benhabib’s
book, entitled The Generalized and the Concrete Other: The Kohlberg-Giligan Controversy and Feminist
Theory, in which she explains that “[i]n treating you in accordance with the norms of friendship, love, and
care, I confirm not only your humanity but your human individuality. The moral categories that
accompany such interactions are those of responsibility, bonding, and sharing. The corresponding moral
feelings are those of love, care, sympathy, and solidarity,” id., at 159). For a more comprehensive
approach to the implementation of relational theory in law, see MARTHA MINOW, MAKING ALL THE DIFFERENCE:
INCLUSION, EXCLUSION, AND AMERICAN LAW (1990).
47 MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 47-75 (1991). See,
also CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY 58-59 (1992) (discussing the concept of social atomism
14
Relational Malpractice
Relational theory was initially developed and introduced to law by feminist legal scholars
and by communitarians. Relational feminists urge the need to attend to women’s
experience and to the alternative worldview that women wish to promote, based on their
life experience and the moral ethics that such a worldview entails.49 For relational
feminists, the protected human connection that is the basis for the entire theory is the
mother-child relationship, which serves as a model for other social ties and extends to
broader categories of human relations.50 Eventually, it has been extended even more
broadly to a moral and political vision that benefits women and men alike by not only
safeguarding individual rights and self-interest, but also by fostering care, mutuality, and
human connectedness, as essential moral values.51 Communitarians have sought to revive
the place of culture and community in political theory, emphasizing the aspects of
collective identity that are inherent for human beings to flourish and which are essential
for maintaining a meaningful social and cultural life.52 Communitarians draw on the role
that cultural, religious, and national ties play in the formation of every person’s identity,
arguing that society should cherish and enhance these relations generally, and that
specifically it should protect and promote the group rights and cultural rights of culturally
oppressed minorities.53
Our work seeks to highlight another type of social interaction that merits protection: the
doctor-patient relationship. We find that the doctor-patient relationship is particularly illsuited for the atomistic culture that traditionally characterizes legal interventions. Instead
of supporting these relations, the atomistic legal culture actually harms this relationship
and its impact on identity formation processes); West, supra note 46, 5-9 (showing that underlying liberal
theory is the assumption that the human condition is based on separateness).
48 This image is even more extreme in the context of torts, where strangers are brought together by
an injurious event.
49
GILLIGAN, supra note 46; West, supra note 46; NANCY CHODOROW, THE REPRODUCTION
OF
MOTHERING
(1978).
50
GILIIGAN, supra note 46; West, supra note 46, at 2-3, 14-17.
51 West, supra note 46, at 70-72; BENHABIB, supra note 46 (asking: “Are we not all ‘concrete others’?”
(id., at 164) and arguing for “a moral theory [that] allows us to recognize the dignity of the generalized
other through an acknowledgment of the moral identity of the concrete other,” id., at 164).
52 For representative works that promote this line of argument, see TAYLOR, supra note 47; MICHAEL
J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (2nd ed., 1998).
53 WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995); Charles
Taylor, The Politics of Recognition, in Multiculturalism 25 (Amy Gutmann Ed., 2001); WILL KYMLICKA, ED.,
THE RIGHTS OF MINORITY CULTURES (1995). For “cultural oppression”, see IRIS YOUNG, JUSTICE AND THE POLITICS
OF DIFFERENCE (1990).
15
Relational Malpractice
and fails to capture the essence of the broader context of healthcare law, of which it is a
part. The centrality of the doctor-patient relationship and the need for a relational
understanding of healthcare law has received only peripheral attention in legal
scholarship. Where legal scholarship has addressed the topic, it has assumed that the
doctor-patient relationship is premised either on separateness54 or on complete
dependency.55 By contrast, the medical literature has recognized the doctor-patient
relationship as the dominant relationship in the healthcare setting.56 As we shall see,
while the doctor-patient relationship is a central concern in the medical arena, its meaning
is still contested. Over the years, different models of doctor-patient relationships have
emerged, leading not only to different interactional patterns but also resulting in disparate
clinical outcomes. As we describe in further detail below, we find that one such model—the
collaborative model—comports with a relational worldview and therefore we actively
advocate its adoption, through legal and medical channels.
The second aspect of a relational approach is the adoption of a relational-contextual
method for analyzing healthcare-related issues. Such contextual understanding of
healthcare operates on two complementary levels. The first focuses on the particular
features of an interaction, such as personality, medical history, and professional
experience of the parties. The second recognizes that broader forces play an important role
in shaping what seem to be individual interactions, such as the identity of the parties
(race, gender, class, disability), the institutional setting within which they interact
(organizational
culture,
professional
norms,
economic
incentives),
and
the
legal
arrangements that govern their relationship.57 The example of length of doctor-patient
office visits can illustrate the ways in which context and relationships play out in the
medical setting. Office visits are a major arena in which the doctor-patient relationship is
shaped. A relational-contextual method would therefore examine the occurrence of brief
54 Such understanding underlies the literature that is within the framework of the moral or market
paradigms (see supra notes 17-22 and accompanying text), which contributed to the rise of the
consumerist and default types of doctor-patient relationship, as described above (see, infra note 63-66
and accompanying text).
55 Such understanding underlies the professional paradigm that is usually characterized by
paternalistic doctor-patient relationship (see supra notes 14-16, infra note 60, and accompanying texts).
It is also evident in the new yearning to professional authority. See for example the debate surrounding
the role of trust in healthcare law, supra notes 40-44 and accompanying text.
56
See infra Part II.C.
For a more detailed discussionon the role of context in legal theory and practice, see Martha L.
Minow & Elizabeth Spelman, In Context, 63 SOUTH. CAL. L. REV. 1597 (1990).
57
16
Relational Malpractice
doctor-patient office visits, for instance, through both particular and structural prisms. A
focus on the particular characteristics of patients and physicians would steer us away
from a “one size fits all” standard for length of office visits, recognizing that a mixture of
personality traits and the impetus for seeking treatment will influence the meeting time. At
the same time, the contextual-relational method recognizes that length of visits results not
only from personal characteristics, but also from structural forces. Under such a view,
curt and brief encounters should also be attributed to an environment that fails to
compensate physicians for time spent with patients. When physicians are evaluated
according to the number of patients they see and measured according to prescriptions and
clinical tests, it is difficult to expect that they foster a caring and engaged relationship with
their patients. While office visits are not usually viewed as being subject to legal regulation
and scrutiny, the law plays an indirect role in shaping them by providing (or neglecting to
provide) a standard of care against which physicians are measured.
To summarize, in our proposed relational analysis, we introduce the insights that have
emerged from medical writing on the doctor-patient relationship into legal scholarship
through a relational prism. We view the doctor-patient relationship in a mutualcollaborative manner.58 Our approach visualizes the doctor and the patient as sharing a
universe in which the physician is dependent on the patient’s input and collaboration for
accurate diagnosis and effective treatment, while the patient’s need for professional care
does not relegate her to a state of inferiority. As opposed to an atomistic approach, which
devalues the state of dependency, a relational analysis offers a different view that
emphasizes interdependence.59 Such a view considers the wellbeing of both patients and
physicians, and promises mutual benefits in terms of satisfaction and quality of care. In
addition, a relational approach would situate the doctor-patient relationship within a
broader web of relations, i.e., between physicians and institutions, between institutions
and patients, and within the healthcare team. Clearly, a better doctor-patient relationship
promotes better interaction between patients and healthcare organizations, such as
hospitals and HMOs. At the same time, it is obvious that policies promulgated by
healthcare organizations concerning patients and participating physicians penetrate the
doctor-patient relationship and shape its character. This web of relationships does not
operate in a vacuum; it is located within an even broader context of social, political,
58
See infra Part II.C.1.
GILLIGAN, supra note 46; EVA FEDER KITTAY, LOVE’S LABOR: ESSAYS
DEPENDENCY (1999).
59
ON
WOMEN EQUALITY
AND
17
Relational Malpractice
economic, and legal forces. Within this framework our analysis focuses on the role legal
regimes play in shaping relationships in healthcare by uncovering the ways in which
particular legal arrangements have impacted the doctor-patient relationship and their
surrounding environment.
In the following sections we introduce the medical literature that has described the
different models of the doctor-patient relationship and advocate the inculcation of one
specific model, that of a collaborative relationship between doctors and patients. While this
model has been linked with positive medical outcomes it has yet to become a prevailing
practice. We link this state of affairs to the existing legal climate which not only ignores
the impact of legal arrangements governing healthcare on relationships, but has ultimately
had a destructive impact on the fabric of doctor-patient relations and the quality of
medical services.
III.
The Centrality of the Doctor-Patient Relationship under a Relational Approach
A. The Nature of the Doctor-Patient Relationship
The doctor-patient relationship has always been a central component of the practice of
medicine. In the past, the doctor-patient relationship tended to be paternalistic and
hierarchical and idealized patient submissiveness as a key for the therapeutic
relationship.60 Over the years, increased competition and marketing efforts by healthcare
providers together with changes in patient mentality resulting from the rise of patient
rights and consumerism in healthcare have placed patient autonomy and satisfaction at
the fore.61 These developments have generated competing models of doctor-patient
relationships, which have attracted scholarly attention in an attempt to identify ideal types
of doctor-patient relationships.62
A powerful typology was developed by Roter and Hall, distinguishing between paternalistic,
consumerist, default and mutual prototypes of the doctor-patient relationship. Under the
“consumerist” model, patients are described as having gained ultimate control over medical
60
DEBRA L. ROTER & JUDITH HALL, DOCTORS TALKING WITH PATIENTS 5 (1993).
61
See infra Part IV.B.
62
See e.g., Emanuel & Emanuel, supra note 15.
18
Relational Malpractice
decision-making.63 This has been driven by the rise of a market paradigm for healthcare.64
At the same time, such an environment has been experienced by physicians as a challenge
to their professional authority and power to exercise their professional judgment.65 The
“default” model is another consequence of the weakening of the medical profession
together with the growing legal recognition of patient rights and autonomy. Under this
model, the disempowered physician and the emboldened patient reach a stalemate, leaving
both with very little control over the course of medical decision-making.66 Both the
consumerist and default models represent extreme consequences of the shift in the power
dynamics between doctors and patients, neither of which seems to result in positive
interactions between them. A more productive mode of interaction can be found in what
has been termed a “mutual” model of doctor-patient interaction under which patient
involvement in decision-making processes has been viewed as cardinal to medical care
while acknowledging medical professional expertise and authority.67 Under this view
“[e]ach of the participants brings strengths and resources to the relationship, as well as a
commitment to work through disagreements in a mutually respectful manner.”68
The above typology can be grouped under two major modes of communication between
doctors and patients: an oppositional vs. a collaborative mode of communication. The
paternalistic, consumerist and default models, which are characterized by an oppositional
mode of communication, envisage an interaction that is closed and hierarchical, and
therefore deteriorates either into confrontation or withdrawal. Under all three models,
patients and doctors are adversaries with conflicting interests. Even the consumerist
model, which challenges the physician’s traditional superiority and seeks to empower
patients, produces an arm wrestling environment that stifles communication. The mutual
63 ROTER
64
& HALL, supra note 60, at 28.
See supra notes 21-22 and accompanying text.
65 See, Timothy Hall, Bargaining with Hippocrates: managed Care and the Doctor-Patient
Relationship, 54 S. C. L. REV. 689 (2003); Arnold S. Relman, The Impact of Market Forces on the PhysicianPatient Relationship, 87 J. ROYAL SOC’Y OF MED. 22, 22 (1994); Barringer et al., Administrative
Compensation of Medical Injuries: A Hardy Perennial Blooms Again, 33 J. of Health Politics, Pol'y and Law
725, 727-728 (2008).
66
ROTER & HALL, supra note 60, at 33.
67
Roter & Hall, id., at 32-33
68
Id., at. 32.
19
Relational Malpractice
model, on the other hand, opens the door to a different kind of interaction between
physicians and patients, one that is premised on collaboration.69
A collaborative doctor-patient mode of communication recognizes that the doctor and
patient interact within a unique power structure under which each possesses different
types of knowledge and expertise. While the physician has the medical proficiency, the
patient is familiar with her body, her preferences and her needs. Communication therefore
needs to be open, mutual and interactive.70 The collaborative model further recognizes that
doctor-patient
interactions
may
change
across
contexts,
according
to
individual
preferences and character traits while remaining committed to an ongoing negotiation over
patient wishes. As we demonstrate below, such an interactive dialogue is a key not only to
patient
satisfaction
and
well-being,
but
also
to
physicians’
functioning
and
professionalism.71
B. The Benefits of a Collaborative Doctor-Patient Relationship Model
Medical research and professional training have recognized the significance of open and
effective communication between doctors and patients.72 Various empirical studies
conducted in the medical arena have substantiated the connection between such factors
as relationship, communication and trust on the one hand to improved medical results on
the other. These findings show that a collaborative mode of communication could improve
the quality of medical treatment in the following ways.
69 The mutual model is not the only model that is based on collaborative elements. (see Emanuel &
Emanuel, supra note 15 (describing four archetypes of the doctor-patient relationship); M. Robin
DiMatteo, The Physician-Patient Relationship: Effects on the Quality of Healthcare, 37 Clinical Obstetrics
and Gynecology 149 (1994) (advocating for what he terms "collaborative informed choice"); Ezekiel J.
Emanuel & Nancy Neveloff Dubler, Preserving the Physician-Patient Relationship in the Era of Managed
Care, 273 JAMA, 323, 324 (1995).
70 It also needs to address information that may not seem purely medical and encompass nonverbal cues and body language, which can play an important role in terms of understanding the matter at
hand and for establishing trust between the parties. Research has shown that doctors tend to use jargon,
are poor listeners and tend to provide information which they deem important but does not necessarily
comport with what patients would like to be discussed (DiMatteo, supra note 69, at 152). Collaboration,
however, does not imply "that the patient tells the physician what to do or is in unilateral control of the
medical decision-making process... but rather [the patient] works with the physician to try to achieve the
chosen health-outcome goals" (id., at 155).
71
See infra Part IV.A.
72 See DiMatteo, supra note 69, at 154 (stating that "[t]he most effective relationships between
physicians and patients are those in which power and control of health care decisions are shared. In
practice, this sharing requires open, honest and forthright conversation between physician and
patient…").
20
Relational Malpractice
First, it is widely accepted that the quality of care depends on the providers' ability to
obtain all relevant information regarding the patient's condition.73 While physician training
places an emphasis on the acquisition of interviewing skills, experience on the ground
demonstrates that the effectiveness of these techniques varies widely, hampered by an
authoritarian professional culture and the reality of time pressure and exhaustion. Indeed,
research has shown that patients tend to disclose different information on their condition
to the various providers they encounter while being treated.74 This state of affairs is
further exacerbated by cognitive biases, which drive physicians to assume what is relevant
and what is not prior to asking questions, and to interpret the answers they receive as
strengthening their preexisting assumptions on the state of the patient.75 Studies have
shown that open-ended questions allow the physician to draw a richer, sometimes
surprising, account of the patient's condition without consuming significantly more time.76
A related link between relationships and quality of medicine lies in the physician's ability
to diagnose the condition correctly. Here also heuristics play a role, and the ability of the
physician to explore the patient's perspective depends on her information gathering
capabilities.77
Another line of research illustrates the significance of a collaborative doctor-patient
relationship for the patient's motivation to both seek treatment to begin with,78 and to
73
Id., at 150 (stating that "[e]ffective communication is essential for the diagnosis and full
understanding of the problem a patient brings to the clinical encounter").
Id., at 157 (stating that "[m]ore effective physician-patient communication is also associated with
more adequate histories given by patients").
74
75 On the role of heuristics in physicians' diagnoses, see Pat Croskerry, The Importance of Cognitive
Errors in Diagnosis and Strategies to Minimize Them, 78 Academic Medicine 775 (2003); Donald
Redermeier, The Cognitive Psychology of Missed Diagnoses, 142 Annals of Internal Medicine 115 (2005).
76 See Miriam Divinsky, Stories for Life: Introduction to Narrative Medicine, 53 Canadian Family
Physician 203, 204 (2007) (stating that research has estimated that the time it takes patients' to describe
their condition ranges from six seconds to seven minutes); DiMatteo, supra note 69, at 150 (stating that
patients will rarely tell their story for more than two and a half minutes and that if interrupted, patients
will typically reiterate their concerns at the end of the visit so that no real time saving is achieved by
silencing them early on). But see Roter & Hall, supra note 60, at 79-92, 114 (stating that doctors are very
bad at asking open-ended questions, the skills needed in order to draw out patients' stories).
77 Divinsky, supra note 76, at 204 (describing how only when she truly listened to patients was she
able to decipher what stopped them from quitting smoking or addressing obesity); Rita Charon, Narrative
and Medicine, 350 N. ENGL. J. MED. 862, 863 (2004) (stating that "narrative competence gives the doctor
not only the means to understand the patient, but fresh means to understand the disease itself").
78
Todres, supra note 4, at 691.
21
Relational Malpractice
follow the prescribed treatment.79 Physicians' willingness to provide patients with full
information, in an open and engaging manner, has proven a critical component in
patients' adherence to a medical regimen and in their ongoing commitment to keeping
medical appointments.80 Studies have shown that, on average, approximately 40% of
patients fail to follow short and long-term treatments, a statistic that cuts across all socioeconomic and educational levels.81 One study found that approximately one-third of
patients who received prescriptions were taking the medication in a manner that “posed a
serious threat to their health.”82 One explanation for this finding lies in other research
which has found that physicians who prescribe medication tend to conduct shorter visits,
in fact using the prescription to avoid open and elaborate communication with their
patients.83 Finally, we find that physicians do very little in terms of communicating with
their patients about changes in lifestyle habits that are strongly connected to health and
disease prevention (e.g., smoking and weight-related diseases), even though studies have
found that physician communication on these issues can have a real effect on patients’
habits.84 The connection between these findings and the quality of healthcare seems
evident when we view the breadth of healthcare services as indicative of a high quality
healthcare system and understand the physician's obligations as extending beyond the
diagnosis phase.
In addition, some research has found a correlation between doctor-patient communication
patterns and health outcomes for patients. In answering the question of why such a
correlation should exist, one study found that “[b]eyond the obvious—the transfer of
information patients need to manage their disease effectively—the communication between
physicians and patients can be a source of motivation, incentive, reassurance, and
support as well as an opportunity for revision of expectations of both patient and
79 DiMatteo, supra note 69, at 156 (stating that "[i]n the area of adherence, such awareness and
recognition [of the need for effective communication] have proven invaluable"); Hall, supra note 11, at 578.
But see Gatter’s critique of the implied support in the submissiveness of patients entailed in this
argument, Gatter, supra note 44, at 397.
80 DiMatteo, supra note 69, at 157 (stating that "[w]hen physicians offer more information, as well
as more positive talk, less negative talk, and more questions about adherence, their patients are more
likely to follow the chosen treatment. Physicians' interpersonal manner and nonverbal communication
have important effects on patients' subsequent health behaviors and on their keeping of appointments");
Roter & Hall, supra note 60, at 140-144.
81
DiMatteo, supra note 69, at 150.
82
ROTER & HALL, supra note 60, at 140.
83
Id., at 143.
84
Id., at 143-144.
22
Relational Malpractice
physician.”85 Other studies have emphasized the connection between collaborative
communication and "improved recovery from surgery, decreased use of pain medication,
and shortened hospital stays, as well as improved physiological changes in blood pressure
and blood sugar, improvement of symptoms and better management of chronic
conditions.86 While there is no obvious explanation for the connection between
communication and outcomes, the various studies conducted since the 1960s seem to
provide strong substantiation for the link between the two.
Furthermore, research has shown that patient satisfaction is dependent on effective
communication with the physician and on the nature of their relationship. Indeed,
perhaps surprisingly, factors relating to the quality of communication physicians had with
their patients and their ability to exhibit empathy towards their patients and provide them
adequate information have been shown to be the dominant factors in evaluating the
quality of care they received, more so than such elements as the scope of tests ordered by
physicians or the quality of their documentation.87 Specifically, patient satisfaction has
been tied to physicians' mode of communication and the social climate during their
meeting with the patient. A strong connection has been found to exist between patient
satisfaction on the one hand and patient-centered communication in which the patient’s
perspective is actively sought and facilitated through non-judgmental and open
communication, the use of positive-toned statements by physicians and their well
developed non-verbal skills (both in terms of deciphering patients’ feelings and needs and
in generating a warm and open atmosphere) on the other hand.88 Some studies have
established a connection between patients' own evaluation of the treatment they received
and physicians’ performance in medical tasks.89 While patients’ ability to evaluate quality
of medical services is obviously limited,90 it is a significant factor in shaping their trust in
85 Sherrie H. Kaplan et al., Assessing the Effects of Physician-Patient Interactions on the Outcomes of
Chronic Disease, 27 Medical Care Supp. 110, 112 (1989).
See the various studies cited in DiMatteo, supra note 69, at 158; ROTER & HALL, supra note 60, at
146-148.
86
87 http://clinicalcompetency.blogspot.com/2010/02/physician-patient-relationship.htm; Gerald B.
Hickson et al., Development of an early Identification and Response Model of Malpractice Prevention, 60 L.
& CONTEMP. PROBS. 7, 9-12 (1997).
88
ROTER & HALL, supra note 60, at 136-138.
89
Id., at 133.
90
Id., at 134.
23
Relational Malpractice
the particular physician who treated them, as well as in the healthcare system more
generally.91
Finally, research has established a link between physician wellbeing and measures of high
quality medical care. Physician wellbeing and satisfaction are tied to several domains, one
of which is the quality of their relationship with their patients, and have been found to
increase physician attentiveness and decrease such phenomena as risky prescribing
practices.92
These above research findings underscore the importance of communication skills and
relationships building capacities for the assurance of high quality healthcare. They thus
challenge the perceived distinction between relevant and irrelevant information, as well as
between medical-clinical skills on the one hand and relationships and communication
skills on the other, positioning both as central to high quality professional care. Unlike the
collaborative
model,
the
oppositional
model
still
perceives
relationships
and
communication as very much peripheral to the clinical treatment, and often as a luxury
the system cannot afford, or as a symptom of the patient’s struggle to gain power over
physicians. Instead, it views technical measures that relate to clinical knowledge and skills
as primary indicators of quality.93 The problems with such a distinction are twofold. First,
the notion of a clear divide between clinical and non-clinical medical skills and
competencies is questionable. This is due to the interdependence that exists between
clinical performance and communication skills. and between the perception of the quality
91 However, people tend to rate their own doctors higher than healthcare in general, a tendency that
is attributed to cognitive biases. See Roter & Hall, supra note 60, at 135.
92 Mello supra note 3, at 43. The recognition that a fresh approach to the doctor-patient relationship
holds promise for increased physician wellbeing is what has driven the emergence of the narrative
medicine movement. See infra notes 94-97 and accompanying text.
93 See DiMatteo, supra note 69, at 149 (stating that "[t]he role of communication in the physicianpatient relationship, however, is sometimes trivialized. It may seem natural to achieve therapeutic
success by placing great emphasis on physical examinations, blood tests, x-rays, sonograms,
medications, and surgeries. However, available information suggests that when this is done to the
exclusion of a meaningful exchange of information and ideas… several critical elements of care are
adversely affected"). This is also fostered by the fact that the system reimburses physicians for procedures
done to patients and not for talking to them (id., at 153) and is evident in the prominent definitions of
quality of care in the field. Avedis Donabedian, in an article mapping the prevailing approaches to the
measurement of quality of medical intervention, describes three dominant approaches: (1) outcome of
medical services (recovery, post-treatment functioning and survival rates); (2) process of care
(appropriateness and completeness of information obtained through examinations, diagnostic tests and
physicians' technical competence in performing medical intervention), and (3) structure (examining the
adequacy and qualification associated with the setting in which treatment was rendered) Avedis
Donabedian, Evaluating the Quality of Medical Care, 83 Milbank Quarterly 691, 692-695 (2005).
24
Relational Malpractice
of care provided and how patients are treated. Second, even where the distinction between
the two spheres seems correct, the hierarchy between them is flawed because it assumes
the inherent inferiority of relational aspects, which are considered peripheral capabilities
needed merely to ensure patient satisfaction and to assuage complaints. Despite the
proven significance of relationships to quality of care, research has shown that the
oppositional mode of communication constitutes the norm and attention has remained
focused on physicians' clinical skills and expertise.
Within the medical profession certain schools have recognized the benefits of what would
fall under the definition of collaborative communication and the need for a deep structural
change in the profession's understanding of the doctor-patient relationship. These strands
of thought are important because among other things they express the physician's
perspective and the benefits that such a shift holds for the medical profession. A
prominent example is the emergence of narrative medicine.94 Narrative medicine promises
to "enrich the doctor-patient relationship, improve patient care, and enhance doctors'
sense of satisfaction with work" by learning to listen, to reflect and to understand the
narrative conveyed by the patient, as well as by demonstrating emotion and more
effectively communicating information to the patient.95 While physicians have traditionally
been taught and trained to disconnect from their patients, narrative medicine advocates
that doctors stay in touch with their emotions,96 thereby dismissing the common
justifications in support of emotional detachment such as lack of time or the emotional
burden associated with attachment.97 Another example can be found in the writing on
ethics of care and their implications for the practice of medicine and for medical ethics.98
Such writing has sought to infuse a new set of principles and values into classical medical
ethics, such as "human connection, responsibility, care, and context".99
94 Interest in the area has grown with over half of the medical schools in North America including
such courses in their core curriculum, and a leading medical school such as Columbia offering a
specialized degree in narrative medicine.
95
Divinsky, supra note 76, at 203.
96
Id., at 203.
97
Id.
98 Amy Freedman, The Physician-Patient Relationship and the Ethic of Care, 148 CAN. MED. ASSOC. J.
1037, 1037 (1993); Rosemarie Tong, The Ethics of Care: A Feminist Virtue Ethics of Care for Healthcare
Practitioners, 23 J. Med. Philos. 131 (1998); D. F. CATES & P. LAURITZEN, (EDS.) MEDICINE AND THE ETHICS OF
CARE (2001).
99
Freedman, supra note 98, at 1037.
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Relational Malpractice
Both movements draw on (and reinforce) the findings described above and move the
debate to a higher level of abstraction by offering a normative justification for the centrality
of relationships in the medical arena. At the same time, these strands have remained
peripheral in the medical landscape, and have failed to garner the requisite support to
bring about real change.100 One explanation could be that they have remained focused on
the internal-professional front while neglecting the dynamic role of law in shaping doctorpatient relationships.
C. The Law as a Barrier to a Collaborative Doctor-Patient Relationship
The role of law in shaping the different types of doctor-patient relationships has changed
over time. In the past, the law tended to defer to professional practices and judgment,
leaving the field of what is now “healthcare law” to self regulation. As of the second half of
the twentieth century the law became a central player in the power struggles between
physicians, patients and other stakeholders over control and authority in decision making.
At times the law seemed to reflect the old paternalistic power structure, while in other
instances it served as a tool in the hands of reformers who wished to redefine these
hierarchical relations through the empowerment of patients and by curbing the authority
and discretion granted to physicians.
In its various roles, the law has rarely singled out the doctor-patient relationship (as
regards relationships more generally) as an important component of healthcare law that
merits legal attention. This neglect has not meant that the law has been absent. To the
contrary, the design of legal arrangements has typically placed significant barriers to the
adoption of a collaborative model. As evidenced in the following examples, we find that
where the law is not explicitly committed to the promotion of a collaborative doctor-patient
mode of communication, it inevitably gives rise to the oppositional model, thereby cutting
off opportunities for an alternative discourse to emerge.
One example is the concept of "informed consent." This legal category is a relatively late
development that emerged from the growing legal recognition of patients' rights in the
100 Many current medical services still lack "narrative competence," which not only detracts from
"the quality of patient care, but it contributes to an ailing health care system, with dissatisfaction and
frustration
felt
by
health
care
consumers
and
those
who
care
for
them"
(see
www.narrativemedicine.org/announcement-1.doc (last visited on September 27, 2010).
26
Relational Malpractice
latter half of the twentieth century.101 Originally, protection of patient autonomy was
achieved through tort based assault claims against physicians.102 However, the
categorization of unauthorized medical intervention as an assault on the patient, seemed
inappropriate in a context centered on healing and care, and was therefore later situated
within the realm of negligence.103 But the new legal concept of informed consent has also
proven challenging. Patients are asked to sign long legal documents before undergoing
procedures. Very much like uniform contracts in other contexts, the patient and her family
members sign a document that states that they are aware of the nature of the procedure
and the associated dangers and complications, without carefully reading the document, if
at all. When asked to sign the informed consent form, they are preoccupied with the
upcoming procedures, and agree to the procedure without real choice.104 We see how legal
intervention, seemingly aimed at enhancing communication between doctor and patients
to ensure that patients are knowledgeable about their options and are empowered to make
informed decisions, defeats its purpose. In fact, this issue illustrates the consumerist
model, and the ways in which legal intervention has given rise to an oppositional mode of
communication. A legal regime that takes the doctor-patient relationship seriously and
seeks to engender collaboration would emphasize the conditions under which information
is transmitted and the manner in which understanding is verified, rather than simply
providing an avenue for unilateral information transmission.
Another example is the area of bioethical dilemmas and disputes. Many U.S. hospitals
have established ethics committees that address and resolve conflicts over bioethical
issues that arise in the course of medical treatment. Issues such as a patient's refusing life
sustaining treatment are typically decided by a committee comprised of various
institutional representatives. Even though the law has not mandated the adoption of
ethics committees, courts have played an important role in motivating hospitals to
establish such committees, and, in recent years, have come to view the decisions of such
101
Peter P. Murray, The History of Informed Consent, 10 IOWA ORTHOPEDIC JOURNAL 104 (1990).
102
Id., at 104.
KATZ, supra note 19, at 68-69; Linda Farber Post, et al, Pain: ethics, Culture and Informed
Consent to Relief, 24 J. L. MED. & ETHICS 348, 351 (1996).
103
104 DiMatteo, supra note 69, at 155 (stating that "[t]oo often… the obtaining of the patient's
signature under considerable social and normative pressure on both parties shortly before the
performance of a procedure is substituted for truly informed consent about the management of the
patient's entire medical condition").
27
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committees as carrying legal weight.105 While case consultation is only one of several
functions performed by ethics committees (in addition to policy formation and education),
106
it is considered controversial107 and fraught with conflict.108 The establishment of
ethics committees, endorsed by the law, has failed to generate decision making that
incorporates a variety of viewpoints and is responsive to patient and family needs and
concerns. Despite being driven by the same trends that have given rise to informed
consent, the mode of communication and interaction that surrounds ethics committee
decision-making is often unilateral, confrontational and defensive (both vis-à-vis patients
and family members, and within the committee).109 An alternative approach that envisions
a collaborative mode of communication between physicians and patients as well as within
the committee can be found in the bioethics mediation model developed by Nancy Dubler
and Carol Liebman.110 Bioethics mediation provides a “neutral turf,” in which discussions
on the manner in which bioethical dilemmas should be addressed can take place in an
effort to reach consensus, referred to as “principled resolution.” 111 The mediation involves
various members of the care team – physicians, students, nurses, social workers and
consultants, while allowing patients’ and families’ voices to be heard.112 A primary
advantage of bioethics mediation is therefore the fact that “it permits a problem to be
characterized and analyzed by a greater number of trained professionals, thereby
collecting experience and facilitating multidisciplinary discussion,” while including the
patient’s own perspective, needs and views in the decision-making process.113 We see how
an approach that is attuned to relationships and the preferences of the patient can
generate a more effective avenue for addressing conflict in this context. However, bioethics
mediation has yet to become widespread, and the vast majority of hospitals still ascribe to
the unilateral, non-inclusive alternative of decision-making by ethics committees.
105 Anne Griswold Peirce, Some Considerations about Decisions and Decision-Makers in Hospital
Ethics Committees, available at http://www.ojhe.org/index.php/ojhe/article/viewArticle/14/17.
106 Gregory P. Gramelspacher, Institutional Ethics Committee and Case Consultation: Is There a Role?
7 ISSUES. L. & MED. 73 (1991-1992).
107
Id.
108 NANCY N. DUBLER & CAROL B. LIEBMAN, BIOETHICS MEDIATION: A GUIDE
xiv-xvi (2004).
109
DUBLER & LIEBMAN, Id.; Gramelspacher, supra note 106.
110
DUBLER & LIEBMAN, id.
111
Id., at 10.
112
Id., at xiv.
113
Id., at 12.
TO
SHAPING SHARED SOLUTIONS
28
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A third example has to do with the allocation of decision making power between physicians
and managed care organizations. In recent decades, we have witnessed a dramatic change
in the structure of healthcare services, with the rise of managed care and the market
paradigm.114 These new structures have challenged the traditional doctor-patient
relationship by introducing another actor into the decision-making equation. Physicians
are required to choose diagnostic procedures and medication from pre-approved lists or to
obtain approval for exceptional treatment in advance. This state of affairs represents a
major shift from past reality under which physicians enjoyed sole discretion over diagnosis
and course of treatment. In the new market for medical services physician autonomy is
threatened, and physicians may find themselves in a position of conflict of interest
between what they perceive to be the best course of treatment for their patient and what
their carrier agrees to cover. These conditions might distort incentives for open
communication between physicians and patients, rendering some of the information
patients could disclose to their physician irrelevant and making some of the physician’s
considerations confidential. A legal framework seeking to encourage collaborative
communication would favor an alternative structure for supporting the delivery of medical
services, one that would allow for meaningful patient and physician participation in
decision making over medical treatment. Despite some efforts by the law to remove
barriers to communication stemming from the rise of managed care,115 legal intervention
in many instances endorses general policies and specific decisions of managed care
organizations at the expense of direct, open and mutual patient-physician interaction.116
As we can see, in all three contexts legal arrangements have ignored the significance of the
doctor-patient relationship and the need for a proactive commitment to the collaborative
model, resulting in tension, conflict of interest, sometimes undermining the very goals
legal initiatives were designed to achieve. In some cases, bottom up efforts to transform
this environment have emerged, but have achieved limited pockets of success. We believe
that the injection of the collaborative model of relationships into the design of legal
arrangements would generate better outcomes in terms of quality of healthcare, patient
satisfaction and doctors' performance. We therefore contend that the law should adopt a
114
Timothy Hall, supra note 65.
115
See supra note 26 and accompanying text.
116
Bloche, supra note 7, at 413-414.
29
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relational approach to healthcare related issues. Such an approach would provide fertile
ground for the emergence of a mutual doctor-patient relationship, giving rise to a
collaborative mode of communication.
As we demonstrate below, the law governing the realm of medical malpractice similarly
endorses the oppositional model and does not allow for a collaborative mode of
communication to evolve. Within healthcare law, malpractice provides the arena in which
the need for considering the doctor-patient relationship in the design of a legal framework
in the field of healthcare is most pressing.117 We claim that by neglecting the doctorpatient relationship in that context, the law has driven physicians to minimize risk of
liability instead of the risk of harm. These incentives for minimizing risk have penetrated
both the conduct of physicians (the practice of defensive medicine) and their
communication with patients (the adoption of an oppositional mode of communication).
We argue that the oppositional mode of communication stems not only from professional
culture, but also from physicians' desire to shield themselves from legal liability. Such a
mode of communication also breeds an environment that is fraught with conflict and
distrust, where both healthcare providers and the system beneficiaries are dissatisfied and
frustrated. Consequently, doctor-patient relations in many instances are broken,
communication is ineffective or non-existent and both sides are distrustful of one another.
The following sections explore this reality, its origins and consequences, as well as the
limited efforts taken to transform the existing state of affairs.
IV.
The Doctor-Patient Relationship in the Shadow of Malpractice
A. Consumed by Malpractice: Doctor-Patient Interactions as a Battle Zone
Medical malpractice has been described as the single most significant phenomenon in the
healthcare arena, shaping such factors as insurance for practitioners and enterprises,
professional standards and training, and the scope and nature of medical care given in
particular instances.118 While early medical malpractice claims appeared around 1840 in
117
Malpractice constitutes a major area of interest in healthcare law, see Hall, supra note 8, at 350.
118
Todres, supra note 4, at 679-693.
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the U.S.,119 malpractice litigation as we know it today is very much related to
developments that took place in the mid twentieth century.120
Over time, the legal rules governing malpractice have expanded, creating a complex
framework that is unpredictable, cumbersome and costly. Specifically, a medical
malpractice claim must meet the basic requirements for proving that the injury resulted
from a negligent act by establishing a duty of care, its breach, causation and harm.
Proving these is no easy task, given the ongoing evolution of medical knowledge and
standards of practice,121 the knowledge gap between healthcare providers and patients,122
and the delays and costs associated with the backlogged court system.123 Consequently,
litigation results are often described as arbitrary, with justified claims not being pursued
while frivolous suits may result in substantial awards.124 On the one hand, researchers
have estimated that approximately 10% of potential claimants do not bring a malpractice
claim precisely because of these difficulties,125 suggesting that the granting of very high
awards in extreme cases obfuscates the fact that many of those injured remain undercompensated.126 On the other hand, the system enables those with financial and
emotional stamina to pursue borderline claims,127 and has been critiqued for generating
119
James C. Mohr, American Medical Malpractice Litigation in Historical Perspective, 283 JAMA 1731
(2000).
120
See infra Part III.C.
121 See David. R. Riemer, Follow the Money: The Impact of Consumer Choice and Economic Incentives
on Conflict Resolution in Health Care, 29 HAMLINE J. PUB. L. & POL'Y 423, 423-424 (2008) (stating that
medicine "is inherently imprecise. Uncertainty, probability, and risk permeate many, if not most, of the
decisions that doctors make").
122 Paul C. Weiler, The Case for No-Fault Medical Liability, 52 MD. L. REV. 908, 926 (1993); Marlynn
Wei, Doctors, Apologies and the Law: An Analysis and Critique of Apology Laws, 40 J. OF HEALTH L. 107,
153 (2007). This general knowledge gap is made even more extreme by the prevailing physician
communication patterns. Oftentimes patients do not understand much of what they are being told by
their physicians who tend to use professional jargon, leave little room for questions and hold very
different beliefs than patients about what constitutes adequate disclosure. See DiMatteo, supra note 69,
at 152.
123
Todres, supra note 4, at 681, 686.
124
Weiler, supra note 122, at 912-914; Todres, supra note 4, at 679-682;.
125 T. A. Brennan et al., Incidence of Adverse Events and Negligence in Hospitalized Patients: Results
of the Harvard Medical Practice Study I, 324 NEW ENG. J. MED. 370, 371-372 (1991).
126
See Weiler, supra note 122, at 918-919; Todres, supra note 4, at 680, 682.
127
Weiler, supra note 122, at 918-919; Todres, supra note 4, at 680.
31
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arbitrary and unpredictable outcomes.128 The result is a complex picture in which courts
provide distorted incentives for parties.129
Even where litigation is merited, the trial typically lasts several years, during which time
claimants are preoccupied with the lawsuit and find it difficult to heal and move on with
their lives. Physicians, on their end, are deeply concerned with the harmful impact such
litigation can have on their reputation and professional status, as well as the financial
implications in terms of insurance premiums.130 In addition, they are often consumed by
feelings of guilt and isolation,131 even depression.132 This state of affairs has proven taxing
for healthcare providers, patients and the healthcare system at large.
Malpractice litigation in the U.S. is constantly rising133 with many more potential claims
being settled even before a lawsuit has been filed.134 Although malpractice claims have
been more frequent in particular areas of practice,135 the reality of large scale medical
malpractice claims has colored doctor-patient relations in all fields. A prominent
development has been the adoption of defensive measures by the medical team in an
attempt to reduce their exposure to legal liability.136 Fear of malpractice liability has also
served as a real barrier to communication between the medical team and patients (and
their family members) in the aftermath of a medical mistake. While patients and their
128 See Barringer et al., supra note 65, at 740 (stating that in response to the Harvard Medical
Practice Study on malpractice claiming “the lawyers asserted that the study demonstrated that too many
instances of malpractice went under-compensated; physicians argued that it highlighted the litigation
system’s arbitrary nature and inability to distinguish negligent from non-negligent injuries”). Physicians,
who predictably have very little trust in the system, typically believe that the outcome of litigation has
more to do with the extent of the injury than to the existence of negligence. See Todres, supra note 4, at
684.
129 Weiler, supra note 122, 911-919; David A. Hyman, Medical Malpractice and the Tort System:
What Do We Know and What (If Anything) Should We Do About It?, 80 TEX. L. REV. 1639, 1645 (2002).
130 Charity Scott, Therapeutic Approaches to ADR in Health Care Settings, 21 GA. ST. U.L. REV. 797,
798 (2005); Samuel R. Gross & Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the
Selection of Cases for Trial, 90 MICH. L. REV. 319, 360-367 (1991).
131 Tom Delbanco & Bell K. Sigall, Guilty, Afraid and Alone – Struggling With Medical Error, 357 NEW.
ENGL. J. OF MED. 1682, 1682 (2007).
132
See infra note 149.
133 Weiler, supra note 122, at 912 (showing that within three decades claims have rose "from
approximately one claim per 100 doctors a year in the late 1950s to more than ten claims per 100 doctors
in the early 1990s").
134
Delbanco & Sigall, supra note 131.
135
See Hickson et al., supra note 87, at 7.
136
See Todres, supra note 4, at 684-685.
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families seek an apology and information on the circumstances that gave rise to the
mistake as well as its consequences, doctors often disclose as little information as
possible,137 refrain from communicating with such patients altogether, and do not
apologize.138 As a result, patients and family members may sue precisely because the
silence and evasion by the healthcare team has generated feelings of resentment and
distrust on their end and in the hope that they will obtain more information about the
circumstances of the adverse event they or their loved ones experienced.139
But the reach of the fear of malpractice liability has extended beyond those instances
where mistakes have actually taken place, contaminating the entire sphere of doctorpatient relations and infiltrating such interaction from the outset.140 This is very different
from the idyllic portrayal of the doctor-patient relationship in some of the legal scholarship
dealing with malpractice. Such relations are sometimes described as healing relationships:
Relationships that are centered on physicians' desire (and duty) to relieve suffering and
provide optimal treatment with "care being the foundational principle and healing being
the primary objective."141 While these relations have been likened to family ties in their
level of intimacy and trust,142 others have shown that the rhetoric of healing can be
misleading in light of prevailing modes of professional training and treatment protocols,
which are centered on physical symptoms and suffering.143 In fact, as we have shown, the
137 See Carol B. Liebman & Chris Stern Hyman, A Mediation Skills Model to Manage Disclosure of
Errors and Adverse Events to Patients, 23 HEALTH AFFAIRS 22, 24, 30 (2004); Todres, supra note 4, at 685.
138 See Jay L. Hoecker, Guess who is not Coming to Dinner: Where are the Physicians at the
Healthcare Mediation Table?, 29 HAMLINE J. PUB. L. & POL'Y 249, 258 & footnotes 18-21 (2008); Jonathan
R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009, 1061-1065 (1999). This reality has been
somewhat softened by the adoption of "Apology Laws" aimed at encouraging physicians to provide
patients and their families with information on medical errors by excluding the admission at trial of any
statements
of
sympathy
made
by
physicians
during
such
disclosure
(see
http://www.sorryworks.net/laws.phtml (last visited on September 25, 2010)). Critics have claimed,
however, that apology laws have been unsuccessful in overcoming other barriers that discourage
physicians from disclosure of errors (see Wei, supra note 122). In addition, some states have adopted
"mandatory disclosure laws," which have in effect forced providers to conduct conversations with patients
and families in the aftermath of "serious events" (Liebman & Hyman, supra note 137, at 23). Here, like in
the apology context, it is insufficient to allow for (or even mandate) such conversations to take place. For
these talks to be fruitful and responsive to patient needs, they need to be conducted in accordance with
patient expectations regarding provider demeanor and information provision in the course of the
conversation (id., at 23-24).
139
See Delbanco & Sigall, supra note 131, at 1683; see also infra note 155 and accompanying text.
140
See the view conveyed in the following article: Wei, supra note 122, at 126.
141
Todres, supra note 4, at 675.
142
Hall, supra note 11.
143
Todres, supra note 4, at 675.
33
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traditional model of doctor-patient relationships, which reflects the perception of the
doctor as a powerful healer, is actually in tension with the ideal healing paradigm. This is
not surprising considering the fact that physicians’ training emphasizes perfection and
clinical skills over empathy and attentiveness.144
The idyllic portrayal of doctor-patient relations is further eroded when we think of the
reality of delivery of medical services in many hospital departments. Long shifts in often
under-staffed and under-budgeted departments have made it difficult for physicians to
treat patients in accordance with their expectations by communicating with them in a
timely and attentive manner.145
When patients seek medical care, in particular urgent
care, they not only feel physical pain, but they (and their family members) are often under
extreme emotional pressure, experiencing fear and anxiety in the face of complex,
bureaucratic surroundings.146
But patients are not the only ones in pain. Such indicators as a high rate of dissatisfaction
with the practice of medicine,147 physicians ceasing to practice,148 and clinical signs of
depression among physicians (both those who have been sued and those who have not
been sued for malpractice),149 are indicative of the breadth of the impact the malpractice
crisis is having on doctor-patient interactions. Indeed, in one study, 75% of specialists
agreed with the statement "[b]ecause of concerns about malpractice liability, I view every
patient as a potential malpractice lawsuit."150 In this environment, the authors deduce
144
Id., at 687-688; Wei, supra note 122, at 147-149.
Orna Rabinovich-Einy, Escaping the Shadow of Malpractice Law, 74 L. & CONTEMP. PROBS.
(forthcoming, 2011).
145
146
See Hall, supra note 11, at 470-472.
147
See Mello et al., supra note 3, at 45.
148 Id., at 44; Allan Kachalia et at., Physician Responses to the Malpractice Crisis: From Defense to
Offense, 33 J. L. MED. & ETHICS 416 (2005).
See Sara C, Charles et al., Sued and Nonsued Physicians’ Self-Reported Reactions to Malpractice
Litigation, 142 AM. J. PSYCHIATRY 437, 440 (1985) (stating that “[a] surprising finding was that the groups
[of sued and non-sued physicians] reported a similar degree of the cluster of symptoms that might be
associated with major depressive disorder … it is possible that the nonsued respondents in general had a
greater vulnerability to stress, especially that related to potential litigation”). In another article,
malpractice litigation is found to generate feelings of uneasiness, vulnerability, frustration and anger.
This impact is related to the allegation of malpractice, not to the outcome of the litigation and therefore,
being cleared of the allegations may do little to alleviate these feelings. Wei, supra note 122, at 139-140
and the references therein.
149
150
Mello et al., supra note 3, at 49.
34
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that "[a]n atmosphere of high liability risk and costs may affect the physician-patient
relationship, precluding mutual trust and hampering communication (relationships)."151
Indeed, research has found that physicians tend to adopt a defensive mode of
communication – one that is hierarchical, distant and confrontational or is based on
avoidance and withdrawal.152 Under such oppositional modes of communication there is
very little engagement, limited listening and reduced understanding. The consequences of
poor communication between physicians and patients can be grave. Obviously, a mode of
communication driven by distrust on both sides is bound to engender frequent conflicts,
which range from small scale conflicts stemming from long waits to actual malpractice
allegations. In such a setting, incentives and instincts go in opposite directions: Physicians
will seek to communicate as little as possible so as to minimize risk while the patients and
family members will want as much information as possible so as to allow them to feel safe
and to trust their doctor.153 Patients are bound to feel they are being treated in a curt and
disrespectful manner. Therefore, the long waits with little proactive attention and few
updates can be expected to generate angry responses. Such a loud environment, in turn,
is hardly conducive to high quality healthcare services. The harm produced by frequent
clashes in the corridor can be expected to expand beyond discomfort by affecting
concentration and morale, potentially impacting clinical decision making.
But the connection between communication and malpractice runs even deeper than the
potential impact of background noise on the quality of treatment provided; high quality
medical care depends on the existence of effective communication between physicians and
patients (as well as within the care team). As we have shown, the ability to communicate
effectively with patients and establishing trust is a key for physicians to solicit all
necessary information on patient history and current symptoms, as well as to ensure that
patients adhere to the treatment ascribed by their physician.154 The need for a
collaborative mode of communication with patients for administering high quality medical
151
Id., at 44.
152
Rabinovich-Einy, supra note 145.
This phenomenon has received wide attention in the context of doctor-patient communication in
the aftermath of a medical error (see Thomas Gallagher et al., Choosing Your Words Carefully: How
Physicians Would Disclose Harmful Medical Errors to Patients, 166 Arch. Intern. Med. 1585 (2006)), but
has also been found to infiltrate such communications throughout treatment, even before an error has
occurred (see generally Rabinovich-Einy, supra note 145).
153
154
See supra Part II.C.
35
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services is in tension with physicians' incentives to minimize such contact, so as to protect
themselves, should their encounter evolve into a dispute involving a malpractice allegation.
Paradoxically, their desire to minimize risk, which translates into an oppositional mode of
communication, actually increases the likelihood of their making a mistake, as well as that
of being sued.155 Fear of liability, resulting from the current malpractice system, extends
beyond the individual level, infiltrating the doctor-patient relationship and interactions on
a structural level. This is evident in physicians’ reluctance to disclose information relating
to errors and near misses, which not only harms individual patients, but also hinders the
ability to learn from past errors and prevent future ones through open discussion.156
Effective doctor-patient communication and mutual relations between the two groups are
therefore important not only for enhancing the wellbeing of both doctors and patients,157
but, as we have shown, also for improving the quality of medical services.158
To better understand the source of the difficulties in doctor-patient relations described
above, in the following section we examine some of the historic developments that have
shaped the doctor-patient relationship in the malpractice context in recent decades,
revealing the centrality of communication in conflict between doctors and physicians as
well as the role of communication as a potential source for prevention and resolution of
malpractice-related conflicts.
155 Many articles tie patients’ motivation to sue and their physicians’ communication patterns over
disclosure of errors. Specifically, major driving forces for suing physicians are the desire for information
about the circumstances under which the error occurred, as well as the physicians demeanor and seeking
an apology. See Kathleen M. Mazor et al., Communicating With Patients About Medical Errors: A Review of
the Literature, 164 ARCH. INTERN. MED. 1690 (2004); Bernard B. Virshup et al., Strategic Risk Management:
Reducing Malpractice Claims through More Effective Patient-Doctor Communication, 14 AM. J. MED. QUALITY,
153 (1999); Wendy Levinson et al., Physician-Patient Communication: The Relationship with Malpractice
Claims Among Primary Care Physicians and Surgeons, 277 JAMA 553 (1997); Christine M. Duclos et al.,
Patient Perspectives of Patient-Provider Communication After Adverse Events, 17 INT'L J. FOR QUALITY IN
HEALTHCARE 479 (2005); Hickson et al., supra note 87. See also DiMatteo, supra note 69, at 151 (stating
that "[e]ffective communication can reduce the risk of malpractice litigation significantly by enhancing the
physician's capacity to determine the patient's expectations for treatment outcomes, thereby reducing
misunderstanding between physician and patient."). In addition, when medical decisions are a product of
collaborative communication, patients are less likely to blame their physicians for the outcome (id., at
157).
156 See Todres, supra note 4, at 688.
This reluctance also extends to errors made by others,
promoting “a culture of protecting other doctors’ actions” (id., at 691).
157 Divinsky, supra note 76, at 203 (stating that better communication could provide “a remedy for
the burnout, exhaustion and disillusionment many… physicians are feeling”).
158 See supra Part II.C.; Michelle Mello et al., supra note 3, at 43 (tying the “culture of mistrust” that
develops under a malpractice regime to the quality of care delivered); Todres, supra note 4, at 687 (stating
that “[t]he current malpractice liability system deters open dialogue and information exchange to the
detriment of patient care as well as the emotional well-being of both patients and healthcare providers").
36
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B. The Sources of Current Tensions in Doctor-Patient Relations
The history of doctor-patient relations in recent decades can shed some light on the
contentious nature of these interactions in the malpractice context. Over the years,
physician-patient relations have changed with patients gaining increased power vis-à-vis
doctors and the medical establishment, while physicians have lost some of their authority
and have had to accept a heightened degree of scrutiny by their patients. These changes
can be attributed to several factors, among them legal recognition of individual patient
rights (associated with the "moral paradigm")159 and the rise of consumer rights (i.e., rights
in healthcare as opposed to the right to healthcare),160 developments that have been
strengthened by the healthcare industry's own commercial interests (as portrayed by the
"market paradigm").161
In terms of patient rights, a deep change took place in the 1970s, as a series of court
decisions did away with traditional paternalism in doctor-patient relations and made way
for a new approach enshrining patients' right to make informed medical decisions and to
view and correct their medical records, and delineating the care team's duty to obtain
patients' informed consent for medical procedures, to keep full medical records, and to
maintain confidentiality of such records.162 The concept of patient informed consent, and
related rights, such as the right to refuse treatment, were further developed by the courts
and in the literature in the 1980s.163
While patients have gained increased power, the medical profession has experienced an all
time low on the personal, professional and organizational levels with a general decline,164 a
159
Supra notes 17-19 and accompanying text.
160 For this distinction, see George J. Annas, A National Bill of Patients' Rights, 338 N. ENGL. J. MED.
695 (1998)
161
Supra notes 21-22 and accompanying text.
Marc A. Rodwin, Patient Accountability and the Quality of Care: Lessons from Medical
Consumerism and the Patients' Rights, Women's Health and Disability Rights Movements, 20 AM. J. L. &
MED. 147, 150-151 (1994) (hereinafter "Patient Accountability"); Annas, supra note 19, at 695-696.
162
163
See Rodwin, supra note 162, at 152-153.
164 Marion Crain, The Transformation of the Professional Workforce, 79 CHI.-KENT L. REV. 543, 564571 (2004); George Ritzer & David Walczak, Rationalization and the Deprofessionalization of Physicians,
67 SOCIAL FORCES 1 (1988-1989); Herbert Kritzer, The Professions Are Dead, Long Live the Professions:
Legal Practice in a Post-Professional World, 33 L. & SOC'Y REV. 713 (1999).
37
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drain in medical staff in particular fields of medicine165 and extreme financial crises at
public and community hospitals.166 Availability of medical information has made patients
more informed,167 while developments in technology have made it ever more difficult for
doctors to know all that they are expected to know.168 The close of the twentieth century
and the beginning of the twenty-first have been accompanied by extensive writing on the
decline of the "professions." In a well-known article, Herbert Kritzer describes the decline
of the medical and legal professions due to a combination of factors, mainly the rise of
digital media and the wide availability of information formerly monopolized by the
professions coupled with increased specialization and compartmentalization of the work
into routine, simple and repetitive tasks some of which can now be handled quite
effectively by low-skill workers at much lower costs.169
These developments have pierced doctors' authority over patients and have transformed
the doctor-patient relationship quite dramatically. While in the past, patients acceded to
their doctor's advice, nowadays the generalist family doctor has given way to a series of
specialists whose authority is often questioned by patients and their families, in light of
information that is freely available online, competing experts' opinions, and constantly
evolving technologies that challenge existing conceptions.170 Challenges to the authority of
medical experts have been voiced not only in terms of treatment of individual patients, but
have also served to uncover patterns of treatment to specified groups of patients, such as
women and people with disabilities, exposing the biases expressed by medical
professionals, the existence of alternative avenues for treatment and the limits of expert
opinion.171 These changes have allowed patients to more frequently contest the course of
165 Florence Yee, Mandatory Mediation: The Extra Dose Needed to Cure the Medical Malpractice
Crisis, 7 CARDOZO J. CONFLICT RESOL. 393, 399-400 (2006).
166 See John D. Blum, Beyond the Bylaws Hospital-Physician Relationships, Economics and
Conflicting Agendas, 53 BUFF. L. REV. 459, 463 (2005-06); Sara Rosenbaum et al., EMATALA and the
Hospital "Community Engagement": The Search for a Rational Policy, 53 BUFF. L. REV. 499, 499 (2005-06).
167 P. Greg Gulick, E-health and the Future of Medicine: The Economic, Legal, Regulatory, Cultural
and Organizational Obstacles Facing Telemedicine and Cybermedicine Programs, 12 ALB. L.J. SCI. & TECH.
351, 373 (2001-02).
168
Riemer, supra note 121, at 425.
169
Kritzer, supra note 164.
170 Id. at 725-731. These developments are typical of the Israeli healthcare arena as well. See Ran
Belitzer, The Revolution Of Information And The Impact On Doctor Patient Relationship, 749 HAREFUA
143(10) (2004).
171 See Rodwin, supra note 162, at 157-166; PAUL STARR, THE SOCIAL TRANSFORMATION
MEDICINE 388-389 (1982).
OF
AMERICAN
38
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treatment recommended by the healthcare team, generating arguments in the course of
treatment and malpractice accusations and claims in retrospect.
Patients have gained increased power not only vis-à-vis their caregivers, but also with
regard to the medical establishment. Increasingly, hospitals are being driven by
competition and commercial considerations,172 seeking, on the one hand, to draw more
patients (at least to certain departments and for specific procedures) and on the other, to
reduce expenditures primarily by cutting hospitalization costs.173 These changes have put
departments like emergency rooms under severe pressure, but have also given patients, or
at least some patients suffering from certain illnesses, more power.174 Since consumers
make choices and such choices are often based on their satisfaction with treatment,
patients' voices and concerns have become more prominent.175 In other cases, however,
dissatisfaction and conflicts have remained widespread phenomenon.
Through the years, litigation over malpractice-related claims has soared,176 as have other
conflicts over such matters as coverage for medical services and complaints over doctor
demeanor.177 With the rise in complaints and conflicts. many physicians have come to
view patients with suspicion, fearing that professional encounters could deteriorate into
legal debacles in the future.178
Similarly, patients have consistently complained about
physicians’ distant and cold demeanor and their reluctance to provide satisfactory
explanations in a direct and comprehensible fashion.179
172 As a result of a combination of factors that have taken place since the 1970s, U.S. hospitals
were transformed from "community service entities" to "healthcare delivery businesses." Blum, supra note
166, at 463.
173
id.
174
Rodwin, supra note 162, at 155-157
175 Louise G. Trubek, New Governance and Soft Law in Health Care Reform, 3 Ind. Health L. Rev.
137, 157-158 (2006). But see Rodwin, supra note 162, at 154-155 (describing the difficulties in making
such decisions in light of information asymmetries as well as some of the ways these problems have been
addressed).
176
Weiler, supra note 122, at 912; Barringer et al., supra note 65, at 727.
177 Indeed, in recent years many hospitals and medical groups have instituted an ombudsman or
patient affairs office to handle such complaints. See Hickson, supra note 87, at 12.
178
See Supra notes 150-151 and accompanying text.
179
See supra notes 87-88 and accompanying text.
39
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As we can see, the picture of doctor-patient relations that emerges from the above overview
is a complex one. On the one hand, the changes that have occurred in the last few decades
can be seen as a positive development enshrining patient rights and contributing to the
equalization of access to important information. On the other hand, these very
developments and the ensuing change of balance in doctor-patient relations have also
given rise to distrust, conflict, and defensive conduct on the part of healthcare
practitioners. While doctors have always been infamous for their brusque manner, the role
played by fear of liability in sustaining such communication culture has received
insufficient attention. As the historic overview suggests, it may very well be that the tortsbased
malpractice
regime
is
what
has
sustained
doctors’
traditional
mode
of
communication in the face of social pressures for change.
In the following section we elaborate on some of the exceptional efforts launched by the
medical and legal establishments, attempting to transform the medical communication
culture, often driven by the desire to reduce malpractice claims precisely because of the
empirical data substantiating the connection between communication skills and the
likelihood of making an error on the one hand, as well as the tie between communication
and the likelihood of patients suing for malpractice on the other hand. We also suggest
why such efforts have enjoyed only limited success so far. While the measures described
below represent an understanding that the doctor-patient relationship is in crisis and a
new balance needs to be found so as to restore trust, these targeted avenues fail to
address the root cause of the problem: the need to do away with the incentives provided by
the current torts system governing malpractice disputes and to adopt instead a legal
regime that allows for a collaborative doctor-patient relationship to develop.
C. Partial Measures for Improving Doctor-Patient Communication
There have been limited areas in which the connection between communication and
malpractice has led to the adoption of important reforms and changes, as evidenced in the
realm of physician communication training,180 in the institutionalization of alternative
180 See Bobbi McAdoo, Physicians: Listen Up and Take Your Communication Skills Training Seriously,
29 HAMLINE J. PUB. L. & POL’Y 287, 290-293 (2008) (describing the impressive efforts to introduce
communication skills training into the curriculum of medical schools in the years since the publication of
“To Err is Human”).
40
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dispute resolution (ADR) avenues in hospitals for addressing doctor-patient disputes,181 in
the adoption of laws requiring providers to establish "disclosure conversations" with
patients and family members in the aftermath of an serious adverse event,182 and in the
adoption of measures for encouraging communication between healthcare providers and
patients in the aftermath of a medical error in the form of "Apology Laws" that shield
doctors who apologize for a mistake from legal liability,183 and/or protocols for disclosure
of medical mistakes by healthcare institutions.184 In this vein, the Department of Health
and Human Services recently awarded four grants, totaling $10 million, devoted to
research on the connection among patient safety, malpractice litigation and doctor-patient
communication.185
Many of the above efforts, including the recent grant scheme, have been driven primarily
by concern over malpractice litigation and a desire to reduce the number of errors and
claims. Enhancing doctor communication skills has been seen as a preventative measure
against the occurrence of mistakes based on the realization that at least some errors were
a result of poor communication. The establishment of ADR channels and the adoption of
the "Apology Laws" have been viewed as a means for encouraging pre-litigation resolution
of malpractice disputes by satisfying the patient's and/or family members' need for
information and/or for an apology.186 These developments have been based on a
substantial body of research establishing that patients' decisions whether to sue in the
aftermath of a medical mistake are not based on monetary considerations,187 but driven by
181 Gary A. Balcerzak & Kathryn K Leonhardt, Alternative Dispute Resolution in Healthcare: A
Prescription for Increasing Disclosure and Improving Patient Safety, PATIENT SAFETY & QUALITY HEALTHCARE
(2008), available at http://www.psqh.com/julaug08/resolution.html.
182
Liebman & Hyman, supra note 137.
183 Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009, 1061-1065 (1999);
Jonathan R. Cohen, Legislating Apology: The Pros and Cons, 70 U. CIN. L. REV. 819 (2002); Liebman &
Hyman, supra note 137; Carole Houk, The Internal Neutral: Why Doesn't Your Hospital Have One?,
mediate.com, June 2002, http://www.mediate.com/articles/houk.cfm (last visited on August 10, 2009).
184 See Liebman & Hyman, supra note 137; See Massachusetts Coalition for the Prevention of
Medical Errors, When Things Go Wrong: Responding to Adverse Events: A Consensus Statement of the
Harvard Hospitals (2006) [hereinafter: When Things Go Wrong].
185 See Carol B. Liebman, Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, 74 L.
& CONTEMP. PROBS. (forthcoming, 2011).
186 Dale C. Hetzler et al., Curing Conflict: A Prescription for ADR in Healthcare, 11 DISP. RESOL. MAG.
5, 6 (2004); Donald J. Cegala & Stefne Lenzmeier Broz, Physician Communication Skills Training: A Review
of Theoretical Backgrounds, Objectives and Skills, 36 MED. EDUC. 1004, 1004 (2002).
187 Tamara Relis, "It's Not About the Money!": A Theory on Misconceptions of Plaintiffs' Litigation Aims
, 68 U. PITT. L. REV. 701 (2007); Liebman & Hyman, supra note 137, at 30.
41
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frustration
over
lack
of
communication
about
medical
errors
and
mishaps.188
Consequently, numerous U.S. hospitals have adopted internal conflict management
schemes189 for addressing patient complaints and malpractice disputes.190
Interestingly, while these efforts have shown real potential in addressing some of the deeprooted problems associated with malpractice,191 the various initiatives have not succeeded
in bringing about real change in the communication culture between doctors and patients
and have failed to significantly reduce communication problems with patients.
explanation for
the persistence
of the
192
hierarchical, distant and curt mode
The
of
communication in doctor-patient relations has typically focused on the traditional values
and culture of the medical profession.193 While professional culture is certainly a factor in
sustaining the oppositional communication style, we believe that the current legal regime
governing malpractice disputes plays a significant role in cutting off communication
channels between physicians and patients. This is true not only in the aftermath of a
medical mistake, but in a much deeper sense, infiltrating doctor-patient relations from the
outset, leading doctors to focus on “reducing risk rather than error.”194
Therefore, it is our contention that only by displacing the malpractice system in its
entirety, would it be possible to escape its shadow and transform doctor-patient relations
in a meaningful way. Clearly current piecemeal tort reform initiatives cannot achieve this
goal. They are aimed at remedying the litigation and insurance crises surrounding
188
See supra note 155 and accompanying text.
189 Susan J. Szmania et al., Alternative Dispute Resolution in Medical Malpractice: A Survey of
Emerging Trends and Practices, 26 CONFLICT RES. Q. 71, 79-80 (2008.
Liebman & Hyman, supra note 137; Balcerzak & Leonhardt, supra note 181; Szmania et al.,
supra note 189, at 77. Charity Scott, Therapeutic Approaches to ADR in Health Care Settings, 21 GA. ST.
U.L. REV. 797, 798 (2005); Sheea Sybblis, Mediation in the Health Care System: Creative Problem Solving, 6
PEPP. DISP. RESOL. L.J. 493 (2006).
190
191
Balcerzak & Leonhardt, supra note 181; Szmania et al., supra note 189, at 74-75, 77.
192 Coby Anderson & Linda D'Antonio, Empirical Insights: Understanding the Unique Culture of
Health Care Conflict, 11 Disp. Resol. Mag. 15, 17 (2004) (citing a healthcare professional who described
how the conflict resolution skills taught in medical school get "untaught" in the residency period).
Naturally, although this could be a result of the quality of particular trainings and courses offered (see
Cegala & Broz, supra note 55), the view offered in this article is that there is a deeper explanation for this
failure.
193
Hoecker, supra note 138, at 252.
194 Todres, supra note 4, at 677. An additional result of this reaction is the growing practice of
defensive medicine, see id., at 684-685.
42
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malpractice and therefore leave intact the underlying structure of negligence based liability
regime.195 Other proposals for reforming the ills of the current malpractice regime have
offered a more radical change in the form of a shift to contractual liability on the one hand,
or the adoption of a no fault administrative liability scheme, on the other hand. The
contractual approach calls for the substitution of the traditional torts regime in the
malpractice arena with a contractual arrangement between patients and either individual
providers or insurers.196 This approach assumes sufficient knowledge, sophistication and
information by patients to reach adequate contractual bargains. This assumption has been
convincingly
critiqued
from
both
economic197
and
behavioral
perspectives.198
Furthermore, this approach fails to acknowledge the centrality of doctor-patient relations
and therefore provides little hope for transformation on this realm.
By contrast, we find that the no fault option lays the foundation for real change on the
relational front. We therefore advocate a shift from a torts-based system to the adoption of
a no fault administrative scheme. This proposal is by no means a new one. As we describe
below, no fault reform proposals emerged as early as the 1970s. However, past proposals
have been based on varying justifications ranging from improved compensation for victims
to enhanced patient safety. None of those proposals put forth a justification grounded in
the doctor-patient relationship and its impact on the quality of healthcare. In the following
section we examine whether and under what conditions the shift to no fault would allow
physicians to adopt a collaborative mode of communication and build better relationships
with patients, boosting existing efforts within the medical arena to improve communication
and transform the doctor-patient relationship.
V.
A.
No-Fault as a Means for Transforming the Doctor-Patient Relationship
The History of the No Fault Alternative: From Compensation to Learning
Since the mid-1970s the medical and legal literature on malpractice have presented the no
fault compensation scheme for injuries related to medical errors as an attractive
195
Todres, supra note 4, at 693-697.
Jennifer Arlen, Contracting Over Liability: Medical Malpractice and the Cost of Choice, 158 U.
PENN. L. REV. 957 (2010).
196
197
See id.
Tom Baker & Timothy Lytton, Allowing Patients to Waive the Right to Sue for Medical
Malpractice: A Response to Thaler and Sunstein, 104 NW. U. L. REV. (forthcoming 2010).
198
43
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alternative to the existing tort-based system.199 The interest in no fault has been driven by
the emergence of such systems in other countries, with New Zealand and Sweden being
the leading models.200 The developments abroad permeated the U.S. legal system in the
late 1980s, in a somewhat different format. The U.S. experiment introduced pockets of no
fault systems in two states – Virginia and Florida,201 but the calls for a more
comprehensive reform of the medical malpractice system have yet to be embraced.
The interest in the no fault alternative for medical errors in the U.S. was linked to what
has been termed the "malpractice crisis." This crisis was manifested in soaring insurance
rates for practitioners,202 a brain drain in certain high-risk specialties,203 and the
proliferation of defensive medicine,204 all of which have resulted in rising healthcare and
199 Clark C. Havighurst & Laurence R. Tancredi, ”Medical Adversity Insurance”—A No-Fault
Approach to Medical Malpractice and Quality Assurance, 51 MILBANK MEMORIAL FUND Q. 125 (1973);
Jeffrey O’Connell, No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective
Coverage, 24 EMORY L. J. 21 (1975); Weiler, supra note 122; Eleanor D. Kinney, Malpractice Reform in
the 1990s: Past Disappointment, Future Success?, 20 J. HEALTH POLITICS, POLICY AND LAW 99, 106 (1995);
Barringer et al., supra note 65, at 728.
The literature on medical errors has distinguished between medical errors and adverse events with
an inner distinction between preventable and unpreventable adverse events. An adverse event is defined
as “an injury that was caused by medical management rather than the patient’s underlying disease. … an
adverse event may or may not result from an error.” Medical errors are defined as “the failure of a planned
action to be completed as intended or the use of a wrong plan to achieve an aim. Medical errors include
serious errors, minor errors, and near misses … A medical error may or may not cause harm.” A
preventable adverse event refers to “an injury (or complication) that results from an error or system’s
failure.” An unpreventable adverse event is defined as “an injury or complication that was not due to an
error or systems failure and is not always preventable at the current state of scientific knowledge.” See
When Things Go Wrong, supra note 184, at 4-5.
The torts system compensates claimants only for those medical errors that meet the legal
requirements for negligence. No fault initiatives have expanded the scope of events covered, depending on
the specific definition of the triggering event for compensation. In this paper, we use the terms medical
error and adverse events in accordance with the above definition, but as we demonstrate in infra Part
IV.B., our approach makes such distinction less acute than previous cases, as we advocate the adoption
of a comprehensive system that provides redress (not necessarily monetary) for a broad range of adverse
events.
200 See Allen Kachalia et al., Beyond Negligence: Avoidability and Medical Injury Compensation, 66
SOC. SCI. & MED. 387 (2008).
201 These systems were designed to cover specific instances of birth-related injuries, as a substitute
for the general torts system. In both states, the stimulus for the shift to no fault was a severe insurance
crisis because of which obstetricians were unable to obtain insurance coverage and, consequently, access
to obstetric care was severely limited. See Barringer et al., supra note 65, at 738-739; Siegal et al.,
Adjudicating Severe Birth Injuries Claims in Florida and Virginia: The Experience of a Landmark Experiment
in Personal Injury Compensation, 34 AM. J. L.& MED. 489 (2008); Maxwell J. Mehlman, Bad “Bad Baby”
Bills, 20 AM. J. L. & MED 129 (1994).
202
See Barringer et al., supra note 65, at 728.
See Michelle Mello et al., Effects of a Malpractice Crisis on Specialist Supply and Patient Access to
Care, 242 ANNALS OF SURGERY 621 (2005).
203
204
See supra note 194
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legal costs. The crisis was never perceived as one relating to the doctor-patient relationship
even though the problem soon gave rise to the battle zone mentality described above, and
proponents of no fault never set as a goal the transformation of relations between patients
and physicians through legal reform.
The no fault option has been hailed by its proponents for its promise of a just, simple and
efficient framework in lieu of the complex, cumbersome, unpredictable and costly tort
option.205 The no fault alternative is premised on the establishment of an administrative
scheme that offers broad compensation that is not dependant on the question of
negligence or personal blame of a healthcare provider.206 Instead, eligibility is determined
based on a definition of the triggering event.207 In addition, the system provides more
limited compensation to a broader class of claimants, thereby controlling some of the
indeterminacies associated with the torts system.208 The thought has been that this
structure would generate a more equitable, quick and inexpensive compensation scheme,
independent of the overburdened and unpredictable court option.209
The global political climate which gave rise to the early no fault alternatives in the 1970s
and 1980s was grounded in the meeting point between two intellectual frameworks: the
then prominent social welfare paradigm210 (which was one of the sources of the moral
paradigm) and the rise of a market approach to law211 (evidenced in the rise of the market
paradigm in the specific context of healthcare law). As we can see, the dawn of one era and
the rise of another, created an atmosphere that was receptive to the no fault alternative.
205 See David M. Studdert & Troyen A. Brennan, No-Fault Compensation for Medical Injuries, 286
JAMA 217, 220 (2001); Barringer et al., supra note 65, at 726.
206
Studdert & Brennan, supra note 205, at 219.
207
Id.
208
Id., at 220.
209
Id., at 226.
The social welfare paradigm reigned in the 20 th century, and emphasized values and principles
such as solidarity, social responsibility and a high degree of government involvement in the regulation of
markets and led to the strengthening of social security arrangements in various countries. The U.S. was
no exception, with the adoption of Workers’ Compensation systems. The social welfare worldview
comported with the adoption of a no fault alternative because such system would allow for a broader and
more equitable compensation base. See Weiler, supra note 122, at 924.
210
211 See supra notes 21-22 and accompanying text. The spread of the market paradigm in torts and
healthcare was indicative of a shift in the broader political climate from a social welfare to a neo-liberal
ideology. Under a law and economics analysis, efficiency is the primary goal of legal arrangements. The no
fault alternative was viewed by some scholars as a superior means for advancing efficiency by reducing
litigation-related costs, curbing the rise in insurance premiums, better spread of harm among the various
actors implicated, and better serving deterrence through improved correlation between the degree of harm
caused and level of compensation awarded.
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Nevertheless, these systems only took hold in countries with elaborate welfare systems
and were fiercely critiqued in the U.S. on two major grounds – the need for individual
deterrence through personal liability, and the higher costs for the public associated with
scope of coverage under such systems.212
Deterrence was recognized as a major goal of the torts-based system following the spread
of law and economics literature in the 1970s and 1980s. The law and economics school
underscored the significance of legal incentives in shaping human behavior in a manner
that maximizes aggregate welfare. By establishing individual liability, it was believed that a
rational doctor would be deterred from acting negligently. As we can see, while liability is
placed on an individual healthcare provider, the rationale behind such a policy is a broadsocietal one. The resistance to the no fault alternative stemmed from the position that
individual blame was essential for steering physicians’ future conduct and the inculcation
of safe practices by individuals.213 Ironically, it was the early law and economics literature
that led to the rise of deterrence as the new goal of the torts system also justified a shift to
no fault, based on the torts system’s failure to realize deterrence.214 It therefore seemed
questionable to reject no fault arrangements based on the grounds of deterrence.215
Another major source of critique of no fault schemes related to the costs that operating
such systems would allegedly entail. Critics claimed that these systems are prohibitively
expensive due to costs associated with the larger pool of claimants.216 Proponents, on the
other hand, emphasized the need to include more justified claims in the compensation
scheme than the current torts system, which presents significant barriers to the pursuit of
212
Studdert & Brennan, supra note 205, at 220.
213 Id., at 220. See also Michelle Mello & Troyen A. Brennan, Deterrence of Medical Errors; Theory
and Evidence for Malpractice Reform, 80 TEX. L. REV. 1595, 1636 (2002).
214 Guido Calabresi’s seminal book The Costs of Accidents, published in 1970, played a key role in
advancing the idea that a fault based regime is not an optimal vehicle for achieving efficiency and
deterrence: “Fault uses the market in an extensive and unstable way to reduce fault caused accidents,
while from the standpoint of market deterrence, we want to use the market in an efficient and stable way
to reduce accident costs, whether they are fault-caused or not.” GUIDO CALABRESI, THE COSTS OF ACCIDENTS:
A LEGAL AND ECONOMIC ANALYSIS 26 (1970) (cited in O’Connell, supra note 199, at 767).
215 Studdert & Brennan, supra note 205, at 220; See also Mello & Brennan, supra note 213, at
1603-1606 (addressing the critiques voiced against the no fault option based on deterrence).
216
Barringer et al., supra note 65, at 748.
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justified claims.217 Indeed, the debate could be framed as a controversy over whether the
torts system was one in which there were too many or too few claims.218
In effect, the question remained which legal arrangement could deliver the goal of just
compensation,
at
a
reasonable
cost,
without
sacrificing
deterrence.
The
first
comprehensive attempt to provide empirical data that would shed light on the debate was
published in the 1990s by a group based in the Harvard School of Public Health (the
“Harvard Group”). This was an extensive study of medical injury and malpractice claims in
New York, which investigated the prevalence of injuries incurred during medical
treatment, the incidence of malpractice, and the rate of claiming for malpractice.219 The
study produced fresh data on the state of medical injury revealing that 4% of hospitalized
patients experience an “adverse event,” approximately half of which are defined as
“preventable.”220 Half of the preventable injuries have been found to be the result of
negligence by the healthcare provider,221 but in only 10% or so of these instances claims
were filed.222 Another striking discovery was that “[p]aradoxically, many claims that were
filed did not appear to involve harmful negligence.”
223
Based on the above findings, the
Harvard Group called for a shift to an administrative no fault regime.224 Indeed, in the
years and decades that followed, members of the group became the most vocal advocates
of the no fault alternative. Their New York research was extended to additional
217 Weiler, supra note 122, at 921-925. Weiler raises an additional important aspect of the costs of
malpractice versus no fault, arguing that “the resulting costs will be ‘afforded’ somehow – if not by the
broader community, then by the immediate victim and family.” Id., at 922.
218 Those who opposed the no fault reform proposals typically viewed the malpractice crisis (rising
insurance premiums) as resulting from (and generating) over-litigiousness. Therefore, while they
recognized the need for change, they endorsed reforms such as caps on non-economic damages,
shortening statute of limitations, and limiting attorney fees, while leaving the torts framework in place
(Todres, supra note 4, at 693-697). Others, on the other hand, focused on the need for redressing those
injured in the course of medical treatment claiming that “The Crisis is Injuries, Not Liability”, Richard A.
Able, The Crisis is Injuries, Not Liability, 37 NEW DIRECTIONS IN LIABILITY LAW 31 (1988).
219 Brennan et al., supra note 125; Leape, L. L., et al., The Nature of Adverse Events in Hospitalized
Patients: Results of the Harvard Medical Practice Study II, 324 NEW ENG. J. MED. 377 (1991); Localio, A. R.,
et al., Relation between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard
Medical Practice Study III, 325 NEW ENG. J. MED. 245 (1991).
220
Brennan et al, supra note 125, at 371-372.
221
Id.
222
Barringer et al, supra note 65, at 740.
223
Id.
224
Id.
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jurisdictions and produced an impressive body of research devoted to the topic published
in leading legal and medical journals.225
The data produced by the Harvard Group generated a lively debate on the adequacy of
compensation under each alternative (torts vs. no fault). However, the group failed to
generate conclusive data226 on both the costs227 and deterrence228 under each alternative.
Their study acknowledged the problem of costs,229 but posited that this could be controlled
through adequate system design by adopting threshold measures and caps on
compensation.230 Furthermore, it seems that the focus on compensation as the sole factor
determining costs seems too narrow a view as it fails to address major costs associated
with the current system (defensive medicine, adjudication, etc.) and the no fault
alternative (administrative costs). This narrow approach may represent a pragmatic
recognition that measuring a broader array of costs is a thorny task.231
Over time, the issue of deterrence became a major source of resistance to the no fault
option.232 Although the original studies were not designed with deterrence in mind, the
Harvard Group’s later work provides important insights into the inherent difficulties in
measuring deterrence.233 More importantly, the group questioned the validity of an
individual deterrence paradigm by shifting the focus from an individualistic approach to a
system-based error prevention framework, and suggesting that the torts system's
225
Hyman, supra note 129, at 1641-1642 & n. 6.
226
Id., at 1646.
227
William G. Johnson et al., The Economic Consequences of Medical Injuries, 267 JAMA 2487
(1992).
228
229
Mello & Brennan, supra note 213.
Studdert & Brennan, supra note 205, at 220.
230 Id.; Barringer et al., supra note 65, at 728. The Harvard Group, however, did not address a
different problem related to the role that cost play in the very definition of “preventable adverse event,” as
defined in the IOM report. As one commentator rightfully claims, these definitions are not objectively
determined since high prevention costs could make an event “unpreventable” and therefore noncompensable. See Maxine M Harrington, Revisting Medical Error: Five Years After the IOM Report, Have
Reporting Systems Made A Measurable Difference? 15 Health Matrix 329 (2005).
231 David M. Studdert et al, Can the United States Afford a "No-Fault" System of Compensation for
Medical Injury? 60 L. & CONTEMP. PROBS. 1 (1997); David M. Studdert et al, Toward a Workable Model of
"No-Fault' Compensation for Medical Injury in the United States, 27 AM. J. L. & MED. 225, 233-234 (2001).
232
Weiler, supra note 122, at 949 & n. 110; Todres, supra note 4, at 701 & n. 155.
233 Hyman, supra note 129, at 1646-1647. While factors such as the relationship between “tort risk”
and “cost per patient” may at first blush seem indicative of a deterring effect on healthcare providers, they
may also reflect added expenditures associated with defensive medicine practices. Mello & Brennan,
supra note 213, at 1610; Weiler, supra note 122, at 916-917.
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deterrence capacity is questionable at best while carefully designed no fault systems are
"far better placed to [deter] than negligence-based litigation."234 Nevertheless, the proposal
failed to garner the requisite support for actual policy change,235 demonstrating the
limitations of the political paradigm described above.236 No fault became a limited solution
for displacing narrowly defined pockets of torts litigation as in the case of the “bad baby”
and vaccination laws where such crises did in fact materialize.237
The dawn of the twenty-first century brought about an important change in the
understanding of the malpractice problem: It was no longer an insurance crisis, but a
question of quality. The impetus for change was the publication of the provocative Institute
of Medicine report “To Err is Human” in 1999.238 The report unveiled fresh data on the
prevalence of medical injuries and their causes. It described medical errors as the eighth
leading cause of death in the U.S., a figure higher than motor vehicle or breast cancerrelated deaths.239 In addition, the report expanded on the various costs associated with
medical errors, highlighting the significance of intangible costs such as loss of trust in
doctors and the healthcare system or loss of morale by healthcare providers, which have
often been overlooked in previous studies.240 The report laid the foundation for the shift
from an individualistic perspective focused on compensating injured patients and
deterring specific healthcare providers to a systemic approach geared towards prevention
234
Studdert & Brennan, supra note 205, at 220.
235 Undoubtedly, the inconclusive nature of the data on deterrence and costs was a major factor in
sustaining the status quo. Another important factor hindering reform has been the divergence in the
interests of key stakeholders. As the Harvard Group members reflect retrospectively, not only was there
divergence among physicians, attorneys, insurers and consumers, but also a diversity of positions, needs
and interests within each group (see Barringer et al., supra note 65, at 743-745, 747-750). Without broad
political support for such a scheme, a shift to no fault was unlikely. In addition, in the 1990s there was
no sense of urgency for reform because there was no so-called “malpractice crisis” at that time (id., at
742).
236
See supra notes 23-27 and accompanying text.
In these specific areas there was a real crisis resulting in the case of neonatal injuries in Florida
and Virginia and in the case of vaccines in a real shortage of vaccinations. See Barringer et al., supra
note 65, at 735-739.
237
238 INSTITUTE OF MEDICINE, TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM 1 (2001). The roots of
this approach can be found already in the early 1990s, see Weiler, supra note 122, at 937-941.
239 To Err is Human, supra note 238, at 1. The reliability of the report’s findings was later critiqued,
questioning the methodology and reliability of the underlying research. See Harrington, supra note 230,
at 345.
240
To Err is Human, supra note 238, at 2.
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of mistakes and learning about the sources of errors more generally.241 Errors were no
longer viewed as resulting from individual mistakes, incompetence or oversight but from
structural characteristics of the delivery of healthcare services.
The report eloquently
states: "To err is human, but errors can be prevented."242 This move echoed similar
developments the aviation and auto industries that accomplished striking breakthroughs
in reducing the frequency of errors.
Despite recognizing the tension between the shadow of individual liability in torts and the
drive for learning through rigorous ongoing analysis of errors, the IOM Report did not
openly endorse large scale reform in the torts liability system. 243 Nevertheless, by
reframing the issue from one relating to insurance premiums to enhancing the quality of
healthcare services, the report set the stage for renewed interest in no fault systems. The
appeal of no fault schemes this time around was not framed around their potential for
delivering compensation to injured patients more equitably and efficiently, but because
they open the door for a more inclusive and sincere analysis of errors, generating learning
and enhancing patient safety.244 However, even the connection to this much-cited report
failed to garner the necessary support for reforming the system. Realizing that a
comprehensive regulatory reform was unlikely (and perhaps premature), the Harvard
Group advocated the adoption of state-level enabling legislation that would allow for
experimentation with no-fault schemes on the ground,245 which could generate learning on
both the optimal design of such systems as well as the sources of errors.246 The latest
241 Barringer et al., supra note 65, at 751; Studdert & Brennan, supra note 205, at 217; Hyman,
supra note 129, at 1647 & n.28 (describing the shift as a “strategically repackag[ing]” of the issue from
uneven compensations to “system based solutions to medical error.”
242 To Err is Human, supra note 238, at 5. The report makes a series of recommendations, which
include the establishment of a national center for research on safety and causes of errors, the adoption of
both strong mandatory reporting requirements on errors as well as voluntary efforts for analyzing errors
and improving quality, the strengthening of private efforts and regulatory incentives aimed at the
promotion of safety programs in healthcare, and the adoption of safe practices at the level where medical
services are delivered (id., at 6-14).
243
Id., at 111.
244 Indeed, in the years following the publication of To Err is Human, the Harvard Group published
a series of articles advocating the shift to a no-fault enterprise liability model, as a superior means for
achieving both the broader-systemic goals of prevention and learning and the individual goal of
compensation. See Studdert & Brennan, supra note 205, at 220; Barringer et al. supra note 65, at 751;
Kachalia et al., supra note 200, at 22.
245 Studdert & Brennan, supra note 205, at 222; Mello & Brennan, supra note 213. For various
critiques of a voluntary approach to no fault, see Hyman, supra note 129, at 1647-1654.
246 While the Harvard Group did not ground its proposals for these schemes in a theoretical-legal
framework, they seem to comport with innovative regulatory approaches termed "new governance
theories," which gained salience from the mid-1990s.
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incarnation of the no-fault alternative was the health courts proposal advanced by
members of the Harvard Group. This proposal preserves the fundamental elements of
previous proposals while shifting from a pure administrative structure to a quasi-judicial
one.247 As we can see, these proposals were unsuccessful in garnering the requisite
political support. However, the recent Healthcare Reform grants project, which calls for the
development of alternative liability schemes, may alter the political economic climate,
generating a broader support-base for such reform.248
As we can see, over the years, the debate surrounding the no fault alternative has
changed: from an insurance crisis to an issue of quality, from individual liability to
structural causes, and from compensation and deterrence to learning and prevention.
Nevertheless, we believe that the understanding of the problem is not sufficiently broad.
"Quality" in both "To Err is Human" and in the Harvard Group's writing remains focused
on clinical skills and medical knowledge. A broader approach would highlight the role
played by doctor-patient relations in the delivery of high quality medical services, and, in
particular, the effect of collaborative communication in that context.249 As we have shown,
the hierarchy between clinical skills and relational aspects of medical care is questionable.
Open, mutual and non-defensive communication is essential for preventing medical errors
to begin with as well as allowing for deep learning to take place. In the following section we
explain why the quality of the doctor-patient relationship is not only a relevant
justification for the shift to a no fault regime, but also an important one meriting special
attention.
247
Michelle M. Mello et al., “Health Courts” and Accountability for Patient Safety, 84 MILBANK Q. 459
(2006).
248 American Medical Association, Federal Funding to Test Medical Liability Alternatives, available
at http://www.ama-assn.org/ama1/pub/upload/mm/399/mlr-federal-grants.pdf (last visited on
February 1, 2011) (stating that “Congress created a separate medical liability grant program in the
Patient Protection and Affordable Care Act of 2010 (PPACA). Under the PPACA program , states are
required to develop an alternative liability reform that: (1) allows for the resolution of disputes over
injuries allegedly caused by health care providers or organizations and (2) promotes a reduction of health
care errors by encouraging the collection and analysis of patient safety data.”)
249 In a similar vein, Todres has stated that the no fault alternative “may provide little or no forum
for restoring the relationships that are so integral to health care” (see Todres, supra note 4, at 701). We,
however, do not see this as an inherent attribute of no fault proposals, but as a consequence of system
design features, which could be designed to promote the enhancement of relationships.
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B. Relationships as a New Justification for No Fault
While reform proposals advocating a shift to no fault have viewed it as a targeted solution
to an isolated problem (malpractice), we believe that the debate should be situated within
the broader framework of healthcare law. As we have argued, the design of legal
arrangements for the healthcare arena should be informed by relational theory. We have
offered an understanding of relational theory which is comprised of two major aspects –
the centrality of relationships and the significance of context. While in the opening of the
article we offered a sketch of the general contours of a relational approach to healthcare
law in general, in what follows we focus on the specific arena of malpractice,
demonstrating the ways in which relationships and context shape this field and should
shape legal intervention. As we show below, the current malpractice regime and the nofault alternative as portrayed so far, present a different approach, one that is focused on
clinical skills and competencies of healthcare providers, providing little room for
relationships to flourish and for patient input to be taken seriously.
In terms of relationships, there are three major problems with the current malpractice
regime and with the traditional justification for no fault. For one, under both legal
schemes, the focus is on the moment of error. The current torts regime has harmed the
doctor-patient relationship in two respects. Most clearly, the torts framework makes
interaction between physicians and patients in the aftermath of an adverse event
combative and confrontational, rupturing their relations and hampering communication
between them both in the medical setting and in court. But the torts regime has a more
elusive, indirect influence on doctor-patient relations by shaping medical professionals'
routine interactions with their patients during medical visits, tests, and procedures. The
no fault reform proposals have the potential to reduce some of the animosity and tensions
that currently characterize doctor-patient relations because of the removal of the
individual blame component. Still, their contribution to the relationship aspect will in all
likelihood remain limited. This is, first and foremost, because any improvement in
relationships will merely be a byproduct of the system and not a goal in and of itself.250
Second, these proposals, like the torts system, remain focused on medical errors,
excluding those instances in which problems in the doctor-patient relationship have not
yet resulted in an adverse event. By contrast, a relationships-centered no fault alternative
250 See
Studdert & Brennan, supra note 205, at 222.
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envisions a collaborative doctor-patient relationship, creating an environment that
cultivates ongoing collaboration on a structural level, whether an adverse event has taken
place or not. Such an approach recognizes that relationships develop over time, are
dynamic, contextual, and cannot be fully understood when examined as discrete events
that occur at a particular point in time. It therefore seeks to detect a broad range of
problems along the continuum of care based on the understanding that problems often
cannot be neatly categorized into a particular type of dispute (such as "errors" vs.
"complaints"),
that
such
categorizations
may
change
over
time,
and
that
our
understanding of the circumstances which may generate errors also change and depend
on our ongoing examination of complaints, problems and errors.
A second way in which the current medical malpractice scheme and the no fault
alternatives have misunderstood the nature of relationships in healthcare law is by
focusing on the doctor-patient relationship as a standalone relationship, which provides
sufficient context for understanding the circumstances that surround medical errors. As
we have shown throughout this article, while the doctor-patient relationship is a (perhaps
"the") central relationship in healthcare, it exists within a broader web of relationships,
feeding into them and being shaped by them – relationships that exist within the
healthcare team itself, between providers and managed care organizations, between
patients and managed care, and the like.251 To gain a better understanding of the sources
of medical errors, one must not only examine a broader range of problems and complaints
than those defined as "errors," but also examine problems that arise outside the scope of
the doctor-patient relationship and could shed light on the reasons for the occurrence of
an error as well as the means for preventing such errors in the future.
Finally, the existing torts framework and the proposed no fault alternative, by focusing on
individual compensation for the injured, have remained loyal to the basic atomistic lone
rights bearer paradigm, failing to offer a more satisfying alternative to patients that
actually addressed their needs and interests. As we and others before us have claimed,
most malpractice claimants are not after monetary compensation, certainly not as a sole
and principal goal. Many of them would like to learn additional details regarding the
circumstances of the injury, receive reassurance that it will not recur in the future, and
251 See
supra Parts III.A. and III.B.
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hear an apology.252 The no fault alternative brings us closer to "what plaintiffs want" by
cultivating an atmosphere that allows more communication to take place between
physicians and patients in the aftermath of an error and by setting prevention and
learning about the sources of mistakes as a goal. Nevertheless, by limiting learning to the
realm of medical errors and neglecting the need for nourishing relationships as a goal in
and of itself, the no fault alternative has also been relegated to an individualistic
perspective.
In terms of context, the second component of a relational approach, both the torts system
and the no fault options, as presented thus far, have failed to meet relational expectations.
For one, both approaches fail to take into account patient input and voice, offering
uniform prefixed monetary remedies through a structured process. By contrast, a
relational approach would seek to offer a more pluralistic array of processes, which
envisage a range of needs according to varying patient characteristics, different problems
and the range of circumstances under which the problem arose.253 Second, a relational
approach must recognize, alongside the particular characteristics of a given context that
such circumstances are also shaped by structural factors. While the no fault alternative
has moved in this direction by recognizing that medical errors often result from structural
deficiencies, it has yet to recognize the impact of structural elements on the relationshiprelated aspects and the connection between clinical skills and competencies on the one
hand and relational components on the other hand.
In the following section, we further develop these ideas in offering a more concrete vision
for the design of a no fault alternative from a relational perspective.
C. Designing an Alternative with Relationships in Mind
In considering how the law should address medical errors, a broad view should be
employed under which the impact of legal arrangements on relationships is examined at
various points along the continuum of care, independent of the occurrence of an error. A
commitment to advance collaborative relations between physicians and patients would
necessitate a comprehensive scheme that addresses a wide range of conflicts including,
252 See
supra note 186 and accompanying text.
253 See
supra Part II.C..
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but not limited to, those stemming from medical errors.254 Under such a scheme, a no
fault regime would play an important part in dealing with adverse events, while other
channels would need to be established to address additional types of conflicts, including
legal (such as scope of coverage) and non-legal disputes (such as physician demeanor), as
well as disputes and problems that arise in the context of the web of relationships that
surround the doctor-patient relationship (such as problems among hospital employees).
What sometimes seem trivial disputes could expose communication problems, thereby
preventing future medical errors, in addition to improving satisfaction. Such an approach
responds to the understanding that the distinction between clinical and communication
skills is flawed and recognizes the need to address relationship-related conflicts. A broad
approach that targets a wide range of conflicts, including those that are not categorized as
"malpractice," is based on the understanding that all conflicts have an impact on quality
and potentially relate to safety and prevention, rendering it difficult to discern ahead of
time which of these cases would merit compensation. By addressing a broader pool of
conflicts on a systematic level, the doctor-patient relationship is strengthened and broader
learning is achieved.
Within the framework for addressing medical errors, a no fault system that is focused on
relationships is likely to generate a richer information pool. The expected increase in the
information-base is a result of greater disclosure of information. The expansion in the pool
of available information can be expected due to the removal of physicians' fear of personal
liability which eliminates some of the strongest barriers to information gathering.255 In
addition, the commitment and trust that come with a stronger relationship between
physicians and patients can also be expected to enhance information sharing and
disclosure. By removing the legal disincentives for information sharing and by creating
positive professional incentives and a supportive climate for disclosure, physicians will
divulge more errors and near misses, as well as adopting a more robust understanding of
what constitutes each of these categories. Expansive information exchange and disclosure
can also be expected to reinforce other proactive efforts to engender a more mutual and
collaborative doctor-patient relationship (e.g. communication skills initiatives, and ADR
254 Conflicts stemming from medical errors are one type of dispute that arises in the context of the
doctor-patient relationship. The potential of patient complaints to shed light on malpractice-related issues
was recognized by Hickson and his co-authors who advocated the establishment of a broad dispute
resolution system that would draw on patient complaints to provide advance warning on potential
malpractice allegations. See Hickson et al., supra note 87.
255 See
Studdert & Brennan, supra note 205, at 218.
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schemes). It will also enable improved learning and decisions that are more just in their
allocation of compensation. By expanding the information base on medical errors and
related incidents, a no fault system, premised on the enhancement of relationships, is
likely to be able to realize more fully the very goals that no fault proponents have advanced
– compensation and learning.
In terms of compensation, a richer database would make it possible to better distinguish
those claimants who deserve compensation from those who do not, something the torts
system has been unable to do satisfactorily. Furthermore, a system that enshrines the
importance of the doctor-patient relationship can buoy physician willingness to assist
patients in recognizing when a claim is merited as well as in the process of preparing and
submitting such claim. While the various existing no fault systems already boast of such
cooperation, we believe that it can be expected to flourish in an environment that
enshrines a collaborative ethos.256
As for learning, by expanding the dispute base, we can expect richer, more rigorous data
gathering that could promote learning on the sources of errors and on the effectiveness of
the various means for preventing them, and could generate insights into the connection
between other types of disputes and doctor-patient relations. While in the past, disputes
were perceived as negative developments and were therefore dealt with grudgingly and
suspiciously on an ad-hoc basis, in recent decades this view has changed with entities
recognizing the positive potential of learning from disputes for evaluation and
improvement.257 Disputes provide an important source of data about the quality of
healthcare, professional practices, patient expectations, sources of errors, and the
potential and limitations of current policies. A relationship-based no fault system would
therefore commit to promoting learning that extends beyond the realm of medical errors
256 Research on no-fault systems outside the U.S. has established a link between the shift to no
fault and increased physician collaboration in the claiming process. Specifically, research findings
indicate that Swedish physicians are particularly helpful and cooperative in the claim filing process, with
60-80% assisting patients in the process. In fact, patients often seek the physician's advice on whether to
file a claim or not, although they are not required to do so by law. Unlike Sweden, in New Zealand the
statistics have been somewhat less positive, but this is tied to the former lack of “Chinese wall” between
the claiming and disciplinary avenues, a situation that has since been modified with the hope of achieving
a higher level of cooperation by physicians. Here, physicians' participation in the claiming process is
required, with the physician filing the claim form. See Kachalia et al., supra note 200, at 399-400.
TO
257 See CATHY COSTANTINO & CHRISTINA MERCHANT, DESIGNING CONFLICT MANAGEMENT SYSTEMS: A GUIDE
CREATING PRODUCTIVE AND HEALTHY ORGANIZATIONS IV (1996).
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and relates to the realm of relationships.258 In some cases, lessons drawn from non-legal
complaints may shed light on sources of medical errors as well.259 Indeed, in a system that
is committed to learning, definitions and categorizations can be expected to change over
time.260 Such a system should therefore seek to create a rich database and be committed
to ongoing analysis and evolution.
A no fault system whose primary justification is grounded in the doctor-patient
relationship could also prove instrumental in addressing some of the criticism voiced
against no fault enterprise liability schemes. As mentioned above, one of the early
criticisms raised against no fault reform proposals was that the removal of individual
blame would hinder deterrence.261 The answer provided by the Harvard Group, the leading
proponents of such reform, was that rather than advancing deterrence, such systems
should advance error prevention and patient safety through learning about the sources of
errors.262 Because of the dynamic and evolving nature of medical knowledge and clinical
skills, the need for multi-disciplinary cooperation in the delivery of medical services, and
the strained conditions under which medical treatment is rendered it is often difficult to
discern what went wrong and how such instances could be prevented in the future. In this
environment the incentives provided by the torts system are unfavorable to the type of
rigorous root-cause analysis such complex environments require. As we have shown
above, the shift from deterrence to learning was driven by the realization that medical
errors were rooted in systemic causes and cognitive biases rather than individual
For example, over time, recurring medical errors may uncover difficulties in physicians' ability
to elicit certain types of information from patients, which in turn, undermines patient trust in the
physician and reduces their adherence to the regimen recommended by the doctor and their inclination to
return to the same physician in the future. Compensation to the injured will not address the difficulty in
terms of the doctor-patient relationship. Other measures would need to be adopted, such as individual
training and education of physicians as well as organizational policies that encourage the establishment
of a more effective doctor-patient relationship that generates trust and encourages patients to divulge
personal, intimate information that is relevant to their medical condition.
258
259 Consider, for example, repetitive complaints by patients about the intake process in the ER,
which could uncover that not enough attention is given to the initial questioning of patients about their
condition and symptoms. While complaints could be framed as being about long waits, rude conduct and
the like, the hospital could generate important lessons on the adequacy of information gathering on
patients during these crucial early stages.
260 The understanding of what constitutes an injury that is a result of medical treatment may
change over time, with developments in technology and change in social values and views on these
matters. For example, our understanding of what constitutes a preventable injury will undoubtedly
change as globally accessible digital medical records become the norm.
261
See supra notes 232-234 and accompanying text.
262
See supra notes 238-244and accompanying text.
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incompetence or oversight.263 Such emphasis reinforces positive incentives for improving
healthcare instead of attempting to direct conduct through sanctions, the success of which
has proven questionable at best. Where relationships occupy center stage, we can expect
even more rigorous, richer learning and more effective prevention efforts to take place
because of the broader pool of disputes and complaints such learning will be based on.
This is attributable to the system's interest in different dispute types and to providers'
strong sense of duty and commitment to disclose problems and take part in addressing
them in a collaborative climate.
Another source of criticism of no fault liability schemes is related to their cost. As we have
shown, the cost calculation by both proponents and opponents has been incomplete,
ignoring such components as administrative costs (courts vs. administrative schemes) and
potential savings (reduction in defensive medicine practices). The new justification we offer
for a no fault system reveals additional elements of potential savings. For example, the
broadening of the scope of disputes addressed by the system and the focus on
relationships can be expected to lower the overall rate of disputes due to prevention and
early intervention.264 This, in turn, could translate into higher productivity, improve
doctors’ wellbeing, and lower the rates of employee attrition providing significant savings
that may offset some of the costs associated with a no fault system.265 In addition, we can
expect some of the costs of the no fault compensation scheme to be offset by those cases
in which patients refrain from pursuing claims altogether because they are satisfied with
overall quality of care they received and the information provided regarding the error.
A third compelling critique against no fault systems has been that these compensation
schemes end up excluding a substantial group of eligible claimants because of their
threshold requirements. As described earlier, these requirements were introduced as a
necessary price paid in exchange for curbing the costs associated with a broader base of
potential beneficiaries.266 Under a broad compensation scheme, these claimants will not be
263
Id.
WILLIAM URY ET AL., GETTING DISPUTES RESOLVED: DESIGNING SYSTEMS TO CUT THE COSTS OF CONFLICT
(1988) (the book that signifies the birth of the field of "dispute system design" and whose principal insight
was that conflicts that took place in closed settings could be addressed most effectively through systemic,
pre-designed avenues, thereby also play a key role in the prevention of future disputes).
264
265 DAVID B. LIPSKY ET AL., EMERGING SYSTEMS FOR MANAGING WORKPLACE CONFLICT: LESSONS FROM
AMERICAN CORPORATIONS FOR MANAGERS AND DISPUTE RESOLUTION PROFESSIONALS 7 (2003).
266
See supra note 230 and accompanying text.
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excluded, but will be referred to the relevant patient complaint unit where an investigation
into their claim can be initiated and alternative remedies may be awarded. In addition, the
data concerning such complaints will not be ignored and lost, but will be included in the
overall database and contribute to the efforts to enhance quality of care. Ideally, hospitals
and other such enterprises will implement a centralized unit that will serve as a
clearinghouse, channeling appropriate claims to the no fault compensation schemes, while
referring other types of disputes to parallel channels charged with redressing them. Such
design would enable both addressing different types of disputes and promoting deep
learning on the quality of care, broadly defined.
VI.
Conclusion
The article uncovers the vicious cycle that drives the delivery of medical services today:
The rise in malpractice litigation as a result of patient empowerment and increased legal
scrutiny of medical standards has generated widespread fear of being sued among
physicians, which has translated into the adoption of defensive medicine practices and a
defensive mode of communication. Paradoxically, by limiting communication channels,
providers have actually increased the likelihood of making an error and, where an adverse
event has taken place, the likelihood of their being sued. This, in turn, reinforces
physicians’ concerns over malpractice litigation. Over the years there have been attempts
to break this vicious cycle. These efforts have failed to transform this cycle into a virtuous
one because they have either ignored the role relationships play in the malpractice context
altogether, or have attempted to transform such relations by focusing mainly on post-error
interactions between physicians and patients.
In our view, a virtuous cycle can emerge only if we take relationships seriously. The
relational approach to malpractice that we advance identifies the harm to the doctorpatient relationship caused by the existing legal regime as the main source of the current
crisis. While the law does not explicitly address relationships in healthcare, the legal
arrangements that govern malpractice have had a deep impact on the type of interactions
that have emerged between doctors and patients over the years, steering physicians away
from a collaborative model and cultivating an oppositional mode of communication in its
place. By focusing on relationships, the law is committed to examining its impact on the
doctor-patient relationship and to advancing a collaborative relationship. As we have
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shown, this would not only improve the wellbeing and satisfaction of physicians and
patients alike but would also reduce errors, enhance safety and improve the quality of
medical services. In order to realize the transformation to a collaborative model, the
current legal regime of individual fault and blame must be displaced, and a new
alternative should be designed with relationships in mind. The proposed no fault
alternative, which has been advanced in this article, holds a promise for such a
transformation. Its integrative impetus takes seriously both the doctor-patient relationship
and the additional concerns that are typical to no fault, including compensation, cost,
deterrence, safety, and learning.
Finally, this article also delineates the contours of a relational approach to healthcare law
related issues more generally. As the above analysis of the malpractice crisis reveals, such
an approach can mitigate the destructive impact law can sometimes have on relationships,
the backbone of high quality medical care and effective healthcare services. In addition, a
relational approach expands the range of considerations and concerns that are addressed
by healthcare law, moving beyond traditional solutions. As the field becomes increasingly
complex with the introduction of new technologies, the performance of innovative
procedures, and the involvement of a growing number of stakeholders and actors in
healthcare, the need for addressing the human dimension and relational aspects will be
come all the more pressing.