Forensic Psychiatry & Medicine - Malpractice Prevention Through The Sharing Of Uncertainty

Malpractice Prevention Through The Sharing Of Uncertainty

Informed Consent and the Therapeutic Alliance

Uncertainty presents a commonly acknowledged threat to the doctor-patient alliance [1]; anxious patients seeking doctors also seek the reassurance of medical certainty. But anxiety about undiscovered causes and undetermined outcomes sets doctor and patient apart if both react defensively; even worse, anxiety over uncertainty may evoke feelings of helplessness, hopelessness, and worthlessness.

Increasingly, patients and families who experience tragic disappointments in their expectations of medicine attempt to assuage their grief, helplessness, and despair by suing — that is, blaming — the physician. In doing so, they often fail to discriminate among errors of negligence, other errors, natural variations, and acts of fate. Under the stress of life-and-death decision making, physicians also readily experience negative outcomes as blows to their sense of competence and professional pride. In the midst of such tragedy the physician is tempted to terminate the relationship, saying, "There is nothing more I can do." For the patient, then, a malpractice suit becomes the mechanism by which to force the "abandoning" physician to share both the responsibility for the outcome and — less obviously — the experience of distress and rage occasioned by suffering. [2]

Informed Consent: A Double-Edged Sword

At first sight, the informed-consent procedure seems to offer a way of ameliorating these strains. Nonetheless, physicians by and large have not welcomed informed consent. Besides viewing it as "red tape" and the imposition of a legal constraint on the exercise of professional judgment, physicians have expressed misgivings about the clinical ramifications of informed consent. [3,4]

In fact, the clinical impact of informed consent is double-edged. [5,6] Despite its positive effects of clarify ing options and stimulating mutual understanding, the procedure is not without risk. It can bring to a crisis latent problems that the patient may have in accepting uncertainty — problems that can take two strikingly opposite forms.

At one extreme, calling attention to risks (especially in the chilling style of an informed-consent form) can touch off feelings of helplessness by crystallizing the patient's awareness that the situation really is uncertain. At the other extreme, the seemingly authoritative list of complications with their numerical probabilities, which lay persons have been found to desire, [7] can be used as a magical ritual to dispel the uncertainty. [8] Ironically, such an overly tidy disclosure can inflate the magical hope that "all bases have been covered," and disappointment may lead to malpractice suits. The twin dangers, then, lie in exaggerating how little or how much the physician knows.

Ideally, the clinical utility of informed consent lies in bridging the gap between either of the two fantasies — helpless ignorance or omnipotent certainty — and a more complicated reality. To achieve this goal, however, physicians must stop thinking of informed consent as a formality (the recital of options and signing of the form) and enter into it with their patients as a process of mutual discovery. [9] Informed consent as we envision it here is not an empty gesture toward liability reduction but an interaction between physician and patient, a dialogue intended not only to satisfy this legal requirement but to do more as well. The real clinical opportunity offered by informed consent is that of transforming uncertainty from a threat to the doctor—patient alliance into the very basis on which an alliance can be formed. 1 This is particularly important, since a sense of working together with the doctor may be one of the major elements in avoiding negative reactions to treatment. [10] An approach to this problem is outlined below.

Practical Considerations

Understand the Origins of the Patient's Fantasies of Certainty

Patients invoke wishful or magical thinking as a defense against feelings of helplessness. The fears, doubts, and actual disablements of illness reactivate memories of childhood helplessness and, in turn, of the grandiose and magical thoughts that are virtually the child's only defense. When illness presents a threat to one's well-being — to one's very being, in fact — one attempts to resolve the discrepancy between the perception of powerlessness and the wish for omnipotence by transferring the latter to the physician. The patient says to the physician, in effect, "Okay, I am not perfect, but you will make me good as new. I cede to you the magical powers of my infantile self" [11] The patient thus forms with the physician what psychiatrists call an "irrational" or "narcissistic" alliance, in which the patient approaches the physician as child to parent rather than as adult to adult. [12] In this context the patient is simply not receptive to any disavowal of certainty on the physician's part, hearing it instead as an alienating rejection of the omnipotent, magical role scripted for the physician.

Magical notions of science play a key part in such fantasies of cure. The physician is a representative of science, which is conceived of (certainly in the unconscious but consciously in some cases) as a source of absolutely certain knowledge. [1] Unfortunately, the trust in scientific omnipotence may easily degenerate into paranoid distrust: the patient, already a helpless victim of illness, now feels like the helpless victim of an all-powerful science as well. If the patient is allowed to remain in this dependent state, subsequent outcomes of a disillusioning nature may lead to further regression and refusal to assume responsibility for self-monitoring and self-care or, regrettably, to litigation.

Empathize with the Patient's Unrealistic Wishes

The physician should resist what might seem the logical move of dismantling the unrealistic foundation of the narcissistic alliance by confronting it head-on; one cannot expect to take away the wishful thinking (and the resulting unhealthy attachment to the physician) without providing a different kind of comfort — and attempting a different kind of alliance — in its place.

Paradoxically, the best way to effect this substitution is to empathize with the patient's wish for certainty and with its specific manifestations as understandable human reactions to a difficult and painful situation. Explicit identification with the patient's fantasies is conveyed through such remarks as, "I wish I could give you a medication that was sure to have only positive effects" and "There is just no guarantee you'll live through this — I wish there were," which invite the patient to exchange idealization for identification. The patient can now approach the physician not as a childhood fantasy ideal but as another vulnerable human being facing — and hence, sharing — the same uncertainty. The physician is linked with the realistic, adult part of the patient in what is called a "rational" alliance, with two adults collaborating to reach a reasonable agreement based in reality. Instead of squaring off defensively against each other, doctor and patient are brought together by the shared acknowl-edgment of clinical uncertainty and of the fantasies used to deny it. [12]

Wean the Patient from the Fantasy of Certainty

Once the patient and physician are looking at the fantasy together, the physician can guide the patient in seeing it for what it is. Indeed, the very words used to establish the identification and alliance between patient and physician can begin the work of separating the patient from the fantasy. Expressions like "I wish it were possible . . . ," even as they validate the wish as a wish, imply tactfully that it is contrary to fact. Clarifying statements (e.g., "Many people do believe that one can specify in advance every possible complication of an operation") offer the patient tactful support in taking a critical look at beliefs that he or she may share with "many people." [13]

Having provided this emotional and interpersonal grounding, the physician can proceed to the explicit disavowal of omnipotence and the substantive education of the patient about uncertainty. Both the implicit and explicit teaching separate the reality of human science from the fantasy of godlike science. Now the patient is a participant-observer rather than, say, simply the object of the physician's "experiment." It must be stressed, though, that this alliance and the awareness it generates rest on assurance of the physician's continuing availability to share the uncertainty — expressed, for example, in statements such as, "I'll be with you every step of the way." Implicit in this statement is the promise of a continuing relationship, even if there is a tragic outcome. When this promise is fulfilled, the patient is less likely to feel a need to force the physician to share the experience of the misfortune by means of a malpractice suit.

Note that our approach stresses the selection of what to say to patients rather than such advice as taking more time with patients or telling them more. In practice, less time is taken and more is understood: sound efficiency of communication, not mere volume of words, is the desideratum.

Conclusion

Informed consent need not be a mere formality with a limited medicolegal function. Rather, it can be a focal point in establishing a therapeutic alliance. Seen as a dialogue in which both the cognitive and affective implications of uncertainty are acknowledged and shared, informed consent is a powerful clinical tool. Through its use, helplessness is replaced by a degree of control as the patient becomes a coexperimenter rather than a passive object of experimentation. Hopelessness is replaced by a degree of hope as the patient comes to see that uncertainty does not imply irrationality, defeat, or abandonment. Finally, the alliance between the patient and physician, instead of being Undermined by the specious denial of uncertainty, is strengthened by the mutuality of its acceptance.

The legal benefits flow from the clinical ones. The Usual perfunctory approach to informed consent can be characterized as a form of defensive medicine. Undertaken primarily to protect the physician from legal liability, it often fails to do even that. In contrast, the therapeutic use of informed consent to enlist the patient in an active alliance with the physician discourages overly simplistic blaming and reduces the alienation from the physician that leads the patient to seek legal remedies for dissatisfaction. This is true malpractice prevention, which offers the physician stronger legal protection by allowing both doctor and patient to deepen their understanding while building a supportive and trusting relationship — a relationship based not on unrealistic certainty but on honesty in facing the uncertainty inherent in clinical practice.

Massachusetts Mental
Health Center
Boston, MA 02115

Thomas G. Gutheil, M.D.
Harold Bursztajn, M.D.
Archie Brodsky, B.A.

Supported in part by a grant (5T01-MH-16460-03) from the National Institute of Mental Health.

References