The Decision-Analytic Approach to Medical Malpractice Law
Formal Proposals and Informal Syntheses
Harold Bursztajn, M.D.,
Robert M. Hamm, Ph.D.,
Thomas G. Gutheil, M.D.,
and Archie Brodsky, B.A.
From the Program in Psychiatry and the Law, Massachusetts Mental Health
Center, Boston, Massachusetts, and the Center for Research on Judgment
and Policy, University of Colorado, Boulder, Colorado. Please address
requests for reprints to Dr. Bursztajn, Massachusetts Mental Health Center,
74 Fenwood Road, Boston, Massachusetts 02115, USA.
The close relationship between difficult medical decisions with potentially
tragic outcomes and feared malpractice litigation has been an impetus
to seeking analytic tools to aid decision makers. Although psychiatric
decision making has been subject to well-publicized legal scrutiny, such
scrutiny extends to all areas of medicine. During the past decade a decision-analytic
reckoning of costs and benefits has been proposed as an improvement over
traditional legal standards (particularly those of professional custom)
for determining negligence in medical malpractice actions. For the most
part, however, the courts have not adopted the mathematical approach
to negligence determination used in Helling v. Carey in
1974. Nonetheless, the courts today do weigh costs and benefits, though
in a less precisely numerical way, in deciding whether a physician has
acted as a "reasonable and prudent" practitioner. Careful assessment
of risks is specifically mandated by the informed-consent requirement,
by which the physician is held responsible for disclosing the risks of
alternative treatments to the patient. The synthesis of accepted professional
standards and cost-benefit calculation in the "reasonable and prudent" criterion
of negligence law corresponds, in cognitive terms, to the synthesis of
the intuitive and analytic modes of thought in "quasi-rational" thinking.
As such, it offers a useful model of decision making for physicians and
patients. (Med Decis Making 4:401-414, 1984)
The use of decision analysis in medical decision making has been extensively
explored and debated [1,2]. Simultaneously,
the decision-analytic perspective has made its way into medical malpractice
law, where it has been strenuously advocated if only tentatively applied
[3-5]. The retrospective use of decision-analytic tools
by the courts in determining malpractice liability is not only an area
of great interest and importance in itself, but may also shed light on
the potential application of these tools to before-the-fact decision
making by physicians and patients.
Climo's1 report that even psychiatrists
resort to decision rules motivated by the perceived pressure to practice
legally defensible medicine is indicative of the impact that the fear
of malpractice has had on medical decision making. Malpractice law operates
from hindsight in that it seeks to compensate patients or their families
for harm actually suffered. At the same time, it attempts to correct
for hindsight by determining whether a physician was negligent on the
basis of the information available at the time the physician's decisions
were made. Decision analysis, introduced into legal reasoning as a refinement
of traditional legal considerations, has had some success in protecting
both plaintiffs and defendants from injustice due to hindsight. It has
also come up against limitations that have tempered the courts' (if not
decision theorists') enthusiasm for its application to malpractice law.
A look at both the strengths and the limitations of decision analysis
in curbing judicial hindsight may suggest guidelines for using it effectively
to enhance medical foresight.
Antecedents of Decision Analysis in the Legal Tradition
The law has a long tradition of appealing to implicitly decision-analytic
reasoning to decide cases of negligence. In 1871 a railroad was held
liable in the death of a man who ran in front of an oncoming train in
order to throw a small child to safety [6]. The verdict
turned on the reasonableness of the man's decision (of necessity made
in haste) to place himself in danger, which the railroad claimed constituted
contributory negligence. A commentary by Terry in the Harvard Law
Review in 1915 [7] listed five factors to be
considered in assessing the reasonableness of such a risk:
-
The magnitude of the risk. ...
-
The value or importance of that which is exposed to the risk, which
... may be called the principal object. ...
-
... the value or importance of the collateral object [that which
is to be attained by taking the risk]. ...
-
The probability that the collateral object will be attained by the
conduct which involves risk to the principal; the utility of
the risk.
-
The probability that the collateral object would not have been, attained
without taking the risk; the necessity of the risk. ...
These elements were then listed for the case at hand:
-
The magnitude of the risk was the probability that [the man] would
be killed or hurt. That was very great.
-
The principal object was his own life, which was very valuable.
-
The collateral object was the child's life which was also very valuable.
-
The utility of the risk was the probability that he could save the
child. That must have been fairly great, since he in fact succeeded.
...
-
The necessity of the risk was the probability that the child would
not have saved himself by getting off the track in time.
The commentary did not resort to mathematical calculations, but did make
informal estimates of probability ("very great," "fairly
great") and value ("very valuable"). Its conclusion, although
not stated in the language of a modern decision analyst, represented
an intuitive attempt at decision analysis: "Here, although the magnitude
of the risk was very great and the principal object very valuable, yet
the value of the collateral object and the great utility and necessity
of the risk counterbalanced those considerations, and made the risk reasonable" [7].
In cases of professional negligence, however, the courts for a long time
saw little need for this common-sense version of decision analysis, since
there was a ready-made "community standard" of due care. By
this standard a physician was expected "to possess the degree of
skill and learning which is possessed by the average member of the medical
profession in good standing in the community in which he practices, and
to apply that skill and learning, with ordinary and reasonable care" [8].
By this criterion of professional custom, a physician's acts were measured
against what other physicians would have done in similar circumstances.
The first rock on which this criterion foundered was the inconsistency
of local community standards in the face of advances in medical knowledge.
Improved communications and a growing interdependence among physicians
led to an expansion of the range of reference to "the same or similar
communities" [9] and finally, in the case of nationally
certified medical specialties, to a nationwide community of practitioners
[10]. A more vexing issue has been the lack of a consensus
among physicians on many clinical questions. The courts have been compelled
to recognize that a physician may exercise due care through the use of
methods approved by a "respectable minority" of the profession
[11,12]. With all of these qualifications,
the difficulty of identifying either a legitimate professional consensus
or a respectable minority has led more than one judge to exclaim, "The
test for malpractice is not to be determined by a plebiscite" [13,14].
Finally, what if the standard of the profession itself permits negligent
practice? In the famous T. J. Hooper case of 1932, Judge
Learned Hand held that "a whole calling [tug boat owners] may have
unduly lagged in the adoption of new and available devices [radio receivers].
...Courts must in the end say what is required; there are precautions
so imperative that even their universal disregard will not excuse their
omission" [15]. By this precedent the courts could
overrule the customary practices of an entire profession on the basis
of a higher standard of due care. Judge Hand enunciated such a standard
in 1947, in language which for the first time brought mathematical calculation
into negligence law:
Since there are occasions when every vessel will break from
her moorings, and since, if she does, she becomes a menace to those about
her, the owner's duty, as in other similar situations, to provide against
resulting injuries is a function of three variables: (1) The probability
that she will break away; (2) the gravity of the resulting injury, if
she does; (3) the burden of adequate precautions. Possibly it serves
to bring this notion into relief to state it in algebraic terms: if the
probability be called P; the injury, L; and the burden, B; liability
depends upon whether B is less than L multiplied by P: i.e., whether
B [is less than] PL. [16]
With this decision, handed down just when decision analysis was under
development, an "expected value" criterion for determining
negligence (known as the Learned Hand rule) was established.
Decision Analysis in Medical Malpractice Law
There are numerous cases of medical malpractice on record in which the
professional customs appealed to by the physician defendants have been
held not to provide adequate safeguards for patients [17,18].
The rationale for these decisions was stated in 1972 in Canterbury
v. Spence (a case better known for establishing the strongest
legal precedent for the informed-consent requirement). Echoing Hooper,
the court in Canterbury stated, "Prevailing medical
practice...has evidentiary value in determinations as to what the specific
criteria measuring challenged professional conduct are and whether they
have been met, but does not itself define the standard" [19].
By analogy with the nonmedical negligence cases addressed by Judge Hand
himself, an application of the Learned Hand rule to medical malpractice
law appeared to be called for. In the same year Posner [20]
advocated a thoroughgoing calculus of risks and benefits in which decision-analytic
techniques would be used to allocate damages according to economic principles.
The stage was set for the controversial Helling v. Carey decision
of 1974, in which an ophthalmologist was held negligent by the Supreme
Court of Washington for failing (over a nine-year course of treatment)
to administer routine tonometry screening to a young woman who then was
found to have suffered permanent eye damage from glaucoma. The court
acknowledged that it was the customary practice of ophthalmologists nationwide
not to administer this test to patients under 40 because glaucoma occurs
in only one in 25,000 patients in this age group. Nonetheless, the court
ruled as follows:
The precaution of giving this test to detect the incidence of
glaucoma to patients under 40 years of age is so imperative that irrespective
of its disregard by the standards of the ophthalmology profession, it
is the duty of the courts to say what is required to protect patients
under 40 from the damaging results of glaucoma. [21]
It was the duty of the courts, then, to perform their own cost-benefit
analyses rather than to rely on those implicitly embodied in the customs
of the profession. The outlines of a simple decision analysis are contained
in a concurring opinion in the case:
I believe a greater duty of care could be imposed on the defendants
than was established by their profession. The duty could be imposed when
a disease, such as glaucoma, can be detected by a simple, well-known
harmless test whose results are definitive and the disease can be successfully
arrested by early detection, but where the effects of the the disease
are irreversible if undetected over a substantial period of time. [21]
In a later analysis Schwartz and Komesar [4] carried
out the calculations to show that, as they structured the choices, the
court's decision was consistent with the Learned Hand rule.
In the same year that Helling v. Carey was decided, Forst
[3] independently proposed that the expected-value criterion
of decision analysis be substituted for the standards of evaluation set
by the legal tradition, which he characterized as vague, inconsistent,
and not conducive to good medical care. By this argument the poor definition
of the legal principles used to determine negligence had the effect of
keeping physicians guessing. As a result, physicians unsure of their
legal ground would tend to play it safe, i.e., practice defensive medicine.
Forst's paper expressed a growing belief that some form of retrospective
decision analysis would provide a better corrective to judicial hindsight
than the traditional "community standards" criterion. Whereas
the latter was biased toward the established, conservative practices
of the profession (even if complacently negligent or overly attuned to
the prevention of rare calamities), the mathematical approach to negligence appeared to
have no bias at all [22]. Although the decision in Helling
v. Carey favored greater use of technological safeguards, a cost-benefit
analysis might just as well argue against the routine use of technology,
as in the case of electronic fetal monitoring [23].
It is from this hopeful viewpoint that enthusiasm for the decision-analytic
resolution of medical malpractice cases persists to the present day among
some decision theorists [4,5].
The Reaction Against Decision Analysis
Helling v. Carey has generated considerable controversy within
both the medical and legal professions. [24]. Physicians
and legal experts have rallied to the defense of professional custom
as a fairer and more reliable standard for determining negligence [25].
In response to such protests the state of Washington passed a statute
specifying that medical malpractice cases be decided on the basis of
the standards of the profession [26]. On the whole,
the courts have not followed the Helling precedent in any
sustained way [27].
Why the quantitative approach to negligence determination has not been
compelling to judges and juries (let alone physicians) may be inferred
from the language of Forst's proposal:
We then assert that, for any negligent treatment, the difference
in expected disutility between the negligent treatment and the treatment
demonstrated to be superior can be converted into a dollar amount such
that the plaintiff would have been indifferent between having the inferior
treatment along with this dollar compensation versus having the superior
treatment with no compensation. [3]
The confidence of the author's tone and the good sense of this statement
as an abstract proposition do nothing to eliminate either the technical
difficulties of utility assessment [28] or the larger
question of whether the various disutilities of negligent treatment can
be made commensurable with one another or with dollars. The formulation
quoted is, at any rate, rather distant from the complex and changing
realities of pain, disability, and death.
Thus, the scepticism of judges and legislatures (as in the state of Washington)
may reflect an intuitive appreciation of underlying methodological dilemmas.
As a proponent of this application of decision analysis notes, "The
exact forms of personal utility functions are not known, measures of
health status and risk aversion are subject to error, and the phrasing
of questions designed to clarify utility functions can have startling
impact on the answers received" [5,29].
Learned Hand himself acknowledged the pitfalls of quantification:
The difficulties are in applying the rule,...they arise from
the necessity of applying a quantitative test to an incommensurable subject-matter.
... It is indeed possible to state an equation for negligence in the
form, C = P x D, in which the C is the care required
to avoid risk, D, the possible injuries, and P, the
probability that the injuries will occur, if the requisite care is not
taken. But of these factors care is the only one ever susceptible of
quantitative estimate, and often that is not. The injuries are always
a variable within limits, which do not admit of even approximate ascertainment;
and, although probability might theoretically be estimated, if any statistics
were available, they never are. ...It follows that all such attempts
are illusory, and if serviceable at all, are so only to center attention
upon which one of the factors may be determinative in any given situation.
[30]
The elements of the equation are not all equally difficult to quantify,
however. Economic losses are more easily quantified than noneconomic
ones; laboratory test results fit more readily into numerical calculations
than subjectively experienced symptoms. The danger here is that a formulaic
approach will bias the user toward overemphasizing "hard" information.
In Tribe's words, "Even the most sophisticated user is subject to
an overwhelming temptation to feed his pet the food it can most comfortably
digest" [31]. With this bias in mind, some observers
have turned Forst's argument on its head by predicting that a mathematical
risk-benefit criterion for negligence will result in more, not less,
defensive practice. It has been argued, for example, that psychiatrists
who feel compelled to justify their actions in terms of risks and benefits
in order to avoid malpractice liability (especially in sensitive areas
such as the prediction of violence toward self or others) will be risk-averse
even when the riskier choice has the higher expected value [32].
This may happen if risks and benefits are too narrowly defined, e.g.,
if the knowledge gained from attempting a treatment and observing its
effects is not included as a benefit. It will happen, of course, only
if the courts are unsophisticated in their use of the risk-benefit criterion
or if practitioners base their actions on a fantasy of simplistic judicial
retribution rather than on actual court decisions that do recognize the
complexities of psychiatric treatment [33]. Nonetheless,
the effects of such errors on legal judgments represent a legitimate
concern in the evaluation of a method which must, after all, be carried
out by fallible human beings. The principle established by Helling
v. Carey is unassailable, but in practice it may still contribute
to an indiscriminate use of diagnostic technology.
Decision analysis is employed (whether by physicians and patients or by
attorneys, judges, and juries) in the hope of controlling the effects
of various distorting influences on unaided human judgment. The latter
include personality, emotional, cognitive, and philosophical factors.
Each of these can, however, just as readily bias the three main judgmental
tasks required in decision analysis: the structuring of the decision
tree, the assessment of probabilities, and the assessment of values [22].
Whether or not formal decision-making methods are used, emotional regression
during illness (intensifying the desire for certainty) and mistrust between
patient and physician can have a devastating impact on decision making
[2]. In a malpractice trial the jurors' empathic identification
with the patient's suffering may precipitate similar reactions. The special
danger of the formal decision-analytic approach is not that it creates
these problems, but that it may lull decision makers (in either a medical
or legal setting) into a state of lessened vigilance about them. In addition,
misunderstanding of the implications of mathematical operations on the
part of attorneys, judges, and juries may result in intentional or unintentional
abuses. It was for these reasons that, even before Helling v. Carey,
Tribe [31] expressed strong reservations about the
consequences of introducing mathematical reasoning into legal proceedings.
Legal and Methodological Syntheses
The courts have to some extent resolved the opposition between the custom-based
and cost-benefit criteria by failing back on another tradition of negligence
law, that of appealing to the hypothetical conduct of a "reasonable
and prudent practitioner." One recent court decision phrased this
standard as follows: "A physician who undertakes a mode or form
of treatment which a reasonable and prudent member of the medical profession
would undertake under the same or similar circumstances shall not be
subject to liability for harm caused thereby to the patient" [14].
This criterion, while anchored in the accustomed practices of the profession,
also allows for the critical perspective added by the words "reasonable
and prudent." To determine whether a physician's actions have been
reasonable and prudent, an informal or intuitive analysis of costs and
benefits is called for.
Legal precedents supporting both halves of the "reasonable and prudent" synthesis
have accumulated in recent case law. The "community standard" lives
on in the growing emphasis on the second opinion, which was given new
legal significance by a recent decision holding an orthopedic surgeon
liable for performing an operation against the advice of a consultant
[34]. As a result of this decision, physicians contemplating
major therapeutic interventions can be expected to seek supportive consultations
more readily and to proceed more cautiously in their absence. The cost-benefit
approach, on the other hand, is instantiated in an even more central
legal doctrine, that of informed consent. The doctrine of informed consent
has been defined as "the duty to warn a patient of hazards, possible
complications, and expected and unexpected results of...treatment. ...
As the probability or severity of risk to the patient increases, the
duty to inform him of it increases" [27]. Thus,
the physician must enter into a consideration of risks both in deciding
how much the patient must be told and in actually presenting the proposed
treatment for the patient's consent. Significantly, the dominant (though
not unanimous) legal trend has been to uphold the patient's right to
informed consent irrespective of professional custom [19,35,36].
Even the legislative reaction against the courts' imposition of a cost-benefit
criterion for negligence has had the effect of legitimizing a framework
for cost-benefit analysis. Thus the Washington state statute that reestablished
the professional standard of due care in the wake of Helling v.
Carey specifically exempted from its provisions those cases in
which informed consent was at issue [26].
The disclosure of risks to the patient is part of a larger assessment
of costs and benefits which the physician needs to perform and (by the
informed-consent requirement) share with the patient, since the courts
will attempt a similar analysis retrospectively if a bad outcome leads
to a malpractice suit. The courts have been clear and consistent in ruling
that a bad outcome in itself does not prove negligence [37,38].
Nor will a physician be held liable for a mere error of judgment [39].
A reasonable and prudent physician, however, is expected to undertake
a course of action that is defensible (relative to alternate courses
of action) in terms of expected costs and benefits.
Contrary to the fantasies of putative legal reasoning that motivate a
particular specialty to practice defensive medicine, as described by
Climo1 for psychiatry, examination of actual
court decisions shows legal reasoning to be consistent with the decision-analytic
normative standards for clinical reasoning [33,40].2 For
example, a psychiatrist who is treating a suicidal patient is responsible
for weighing
the possible benefits of close monitoring and increased protective
control ...against the risks of regressive loss of ego-strength, stigma,
reduced capacity to function autonomously, decreased liberty with compromise
of some rights, and recurrent suicidality. The therapist who reduces
restraints on a patient is taking a calculated risk of a suicide attempt,
in return for therapeutic benefits that increase the likelihood of the
patient's returning to normal life. [33]
Here, where the relevant factors are probably less amenable to quantification
than in any other area of medicine, the courts have nonetheless been
willing to scrutinize the costs and benefits in each case rather than
simply hold psychiatrists liable for either all suicides by patients
or none [41,42]. A good example of
this informal cost-benefit reasoning (presented as an alternative to
judicial hindsight) is found in an appeals court decision overturning
a malpractice judgment against a psychiatrist:
[The patient's] reaction to constant surveillance, the possibility
that his heart condition would be aggravated by continuing such surveillance,
the gesture-like nature of his prior suicidal inclinations, the rehabilitative
aspects of "open-ward" treatment and the enhanced possibility
of obtaining [the patient's] consent to electroshock therapy in the more
relaxed open-ward atmosphere were all factors which defendant doctor
could properly consider in reaching the judgment whether, on balance,
the prescribed program was worth the risk involved. [43]
Similar language is used in determining negligence in other contexts of
medical decision making. A leading textbook of malpractice law gives
the following summary of liability with respect to diagnostic testing:
...the more complicated and dangerous the test may be, the less
likely it is that a court will find that a physician was negligent in
failing to perform it. If, however, the patient's condition is quite
serious, of course a physician would be much more likely to be held liable
for failing to have ordered a fairly dangerous test than if the condition
was no more serious, at worst, than the test itself. [27]
The same informal calculus is used in judicial review of the risks and
benefits of treatment with drugs:
Of course, good medical practice frequently requires administration
of a drug in the face of known side effects, and the matter usually is
one of calculated risk. If the patient's condition warrants use of the
drug and if no other drug is as effective, the physician is not negligent
even if side effects do occur. If another drug would, however, be as
effective and less potentially hazardous he is legally obliged to prescribe
it. [27]
Such language takes us back full circle to Terry's 1915 law-review commentary
on the 1871 railroad negligence case. It uses a decision-analytic framework,
one that allows for, but does not insist upon (and in practice usually
does not entail) mathematical calculation. Within this framework an action
that has as its consequence risk of a bad outcome does not subject the
physician to liability for malpractice. However, for the patient legally
to assume the inevitable risks of treatment — whether in the case of
x rays [44], elective surgery for diabetes [45],
diagnostic testing such as angiograms or aortograms [46],
or even release from the psychiatric hospital against medical advice—the
patient must be fully informed of those risks. The informed-consent procedure,
if properly carried out, thus provided both a legal defense for the physician
and an opportunity to clarify costs and benefits both for the patient
and for the physician [33,40,47,48].
In turn, decision analysis, employed with greater or lesser formality
at the physician's discretion, may be as much a useful tool in structuring
the choices presented for the patient's consent as it is in the physician's
ongoing review (alone or with colleagues) of the reasonableness and prudence
of the clinical decisions made.
The "reasonable and prudent" standard of due care, interpreted
in this way, does justice to the uncertainties of medical decision making
as neither of the other two standards does alone. It is more flexible
and context-sensitive than either [22]. Instead of
subjecting the individual case to the dictates of either custom or mathematics,
it respects the unique conditions surrounding a given case and allows
the physician to justify his or her actions in the light of those conditions.
Moreover, it more readily accommodates consideration of difficult-to-quantify
subjective factors than either of the other two standards [33].
Finally, it is more consistent with twentieth-century, probabilistic
science, which (as distinct from the earlier, mechanistic paradigm) provides
principles and decision rules (maxims or rules of thumb) suitable for
coping with uncertainty, making critical use of diagnostic and therapeutic
technology, and replacing hindsight with realism about the limits of
prediction [2].
Counterparts of the legal reasoning described here (in terms of a synthesis
of formal and informal methods) range from a decision strategy outlined
by Benjamin Franklin in 1772 to a theory of cognition proposed two hundred
years later by psychologist Kenneth Hammond. Franklin wrote to the British
scientist Joseph Priestley:
When these difficult cases occur, they are difficult, chiefly
because while we have them under consideration, all the reasons pro and
con are not present to the mind at the same time; but sometimes one set
present themselves, and at other times another, the first being out of
sight. Hence the various purposes or inclinations that alternatively
prevail, and the uncertainty that perplexes us. To get over this, my
way is to divide half a sheet of paper by a line into two columns; writing
over the one Pro, and over the other Con. Then, during three or four
days consideration, I put down under the different heads short hints
of the different motives, that at different times occur to me, for or
against the measure. When I have thus got them all together in one view,
I endeavor to estimate their respective weights; and where I find two,
one on each side, that seem equal, I strike them both out. If I find
a reason pro equal to some two reasons con, I strike out the three...and
thus proceeding I find at length where the balance lies; and if, after
a day or two of further consideration, nothing new that is of importance
occurs on either side, I come to a determination accordingly. And, though
the weight of reasons cannot be taken with the precision of algebraic
qualities, yet when each is thus considered, separately and comparatively,
and the whole lies before me, I think I can judge better, and am less
liable to make a rash step, and in fact I have found great advantage
from this kind of equation, in what may be called moral or prudential
algebra. [49]
Hammond [50] believes that the intuitive and analytic
modes of thought are the two extremes of a continuum, with the ideal
synthesis (for many purposes) represented by what he calls "quasi-rational" thinking.
Among the three traditions of negligence law, the perception of what
others in the professional community would do is largely an intuitive
process, while the calculation of expected values to satisfy the Learned
Hand rule is an analytic one. The "reasonable and prudent" standard,
which combines the two modes of thought, might be said to have a "quasi-rational" character.
It has been argued, for example, that the acknowledged difficulty of
predicting suicidal or violent behavior makes it both unfair and futile
to hold any psychiatrist liable for failure to prevent such behavior
[32]. This "defendant's brief" assumes the
psychiatrist's task is so uncertain that one can only proceed intuitively.
At the other extreme, plaintiffs who claim that the mere fact of a tragic
outcome (e.g., a patient's committing suicide while under a psychiatrist's
care) is, ipso facto, proof of negligence are assuming that the psychiatrist's
environment would allow total certainty if only one would practice analytically.
The courts have been more sophisticated than either side in recognizing
that prediction is a matter neither of total certainty nor of total uncertainty,
but rather of informal judgments of probability and value. The courts
(especially at the appellate level), by applying the "reasonable
and prudent" standard with the help of the language of risks and
benefits, have, in effect, been engaging in as well as endorsing quasi-rational
thinking [33].
In contrast to Forst [3], who claims that the principles
of the law are internally contradictory, Tribe [31]
maintains that the rich traditions of the law, with their intricate rituals
and elaborate symbolism, enable the law to tolerate and work with uncertainty.
Elsewhere, Tribe has rejected the "elusive ideal of wholly objective,
impersonal, and detached instrumental analysis" as "not only
unattainable but destructive" and called for "a subtler ...and
more complex style of problem solving" [51]. Our
review of recent case law and Hammond's description of the modes of human
cognition converge to show how people meet this need.
Discussion
Even articles advocating the wider use of decision-analytic thinking in
malpractice law contain caveats such as: "Decision analysis has
not been developed to the point of enabling many-decimal-place precision
of optimal regulations. It does, however, provide general insights and
policy guidance" [5]. This statement, as applied
to malpractice law, echoes a legal commentary published in 1927, which
states, "We must not assume that we can rely upon any formula in
regard to 'balancing interests' to solve negligence cases. The phrase
is only a convenient one to indicate factors which may be considered
and should not connote any mathematical correspondence" [52],
After a brief flirtation with a more exact calculation of costs and benefits,
the courts have, in the main, returned to this traditional viewpoint.
The law's "quasi-rational" style of assessing medical decisions
after the fact may be a good model for making such decisions before the
fact, in that it recognizes the limitations of more formal methods besides
those of human beings. Although no method can completely avoid the distortions
and biases of decision making, judicious use of formal methods may at
least inhibit self-deception on this score. Decision analysis has been
compared with the "training wheels" of a bicycle as a provisional
substitute for internal balance gained from experience, and with the
psychoanalyst's couch as a prop for learning self-analysis [22].
Such aids are best used in a time-limited or selective, rather than rigid
and routinized, way. For example, a physician might draw decision trees
to document difficult decisions, but without necessarily filling in the
numbers. Overall, physicians and patients would do well to emulate the
courts in mastering informal uses of the decision-analytic method.
Notes
-
Climo LH: Some thorny medical judgments
and their outcomes. The view from the public mental hospital. Med
Decis Making 4:415-424, 1984
-
Hamm RM, Clark JA, Bursztajn H: Psychiatrists'
thorny judgments. Describing and improving decision-making processes.
Med Decis Making 4:425-447, 1984
Acknowledgments
Thanks to Ms. Audrey Bleakely for her help in the preparation of this
manuscript.
References
-
Weinstein MC, Fineberg HV: Clinical Decision
Analysis. Philadelphia: Saunders, 1980
-
Bursztajn H, Feinbloom RI, Hamm RM, Brodsky
A: Medical Choices, Medical Chances. How Patients,
Families, and Physicians Can Cope with Uncertainty. New York:
Delacorte, 1981
-
Forst BE: Decision analysis and medical malpractice.
Oper Res Jan-Feb: 1974, 1-12
-
Schwartz WB, Komesar NK: Doctors, damages
and deterrence. An economic view of medical malpractice. N Engl J
Med 298:1282-1289, 1978
-
Thompson MS: Health versus money. Value judgments
in the perspective of decision analysis. Med Decis Making 3:285-297,
1983
-
Eckert v. Long Island R.R., 43 N.Y. 502 (1871)
-
Terry HT: Negligence. Harvard Law Rev 29:40-54,
1915
-
Boyce v. Brown, 51 Ariz. 416, 77 P. 2d 455
(1938)
-
Tallbull v. Whitney, 564 P. 2d 162 (Mont.,
1977)
-
Robbins v Footer, F. 2d 123 (D.C. Cir.,
1977)
-
Bruce v. United States, 167 F. Supp. 579,
D.C. Cal. 1958
-
Kortus v. Jensen, 237 NW 2d 845, Neb. 1976
-
Chamler v. McClure, 505 F. 2d 489, CCA 6,
1974
-
Hood v. Phillips, 554 S.W. 2d 160, S. Ct.
Tex 1977
-
The T.J. Hooper, 60 F. 2d 737 (2d Cir. 1932)
-
U.S. v. Carroll Towing Co., 159 F. 2d 169
(2d Cir. 1947)
-
Incollingo v. Ewing, 282 A 2d 206, Pa. 1971
-
Guilbeau v. St. Paul Fire and Marine Insurance
Co., 325 So. 2d 395, La. 1975
-
Canterbury v. Spence, 464 F. 2d 772 (D.C.
Cir. 1972)
-
Posner RA: A theory of negligence. J Legal
Stud 1:29-96, 1972
-
Helling v. Carey, 83 Wash. 2d 514, 519 P.
2d 981 (1974)
-
Bursztajn H, Hamm RM, Gutheil TG: The technological
target. Involving the patient in clinical choices. In, Reiser SJ,
Anbar M, eds: The Machine at the Bedside. Strategies for Using Technology
in Patient Care. Cambridge, England: Cambridge Univ Press, 1984,
pp 177-191
-
Thompson MS, Cohen AB, Palmer RH: Decision
making on the clinical use of electronic fetal monitors. Semin Fam
Med 3:89-94, 1982
-
King JH: In search of a standard of care
for the medical profession. The "accepted practice" formula.
Vanderbilt Law Rev 28:1213-1276, 1975
-
Epstein RA: The limits of medical malpractice.
N Engl J Med 298:1311-1312, 1978
-
Washington Revised Code (Supp. 1975), Section
4.24.290
-
Holder AR: Medical Malpractice Law (2nd
ed.). New York: Wiley, 1978
-
Bursztajn H, Hamm RM: The
clinical utility of utility assessment. Med Decis Making 2:161-165,
1982
-
Bursztajn H, Chanowitz B, Gutheil TG, Hamm
RM: Context specific language effects in the decision to prescribe
neuroleptics. Presented at the Fifth Annual Meeting of the Society
for Medical Decision Making, Toronto, Canada, October 2-5, 1983
-
Moisan v. Loftus, 178 F. 2d 143 (2d Cir.
1949)
-
Tribe LH: Trial by mathematics. Precision
and ritual in the legal process. Harvard Law Rev 84:1329-1393, 1971
-
Klein JI, Glover SI: Psychiatric malpractice.
Int J Law Psychiatry 6:131-157, 1983
-
Gutheil TG, Bursztajn H, Hamm RM, Brodsky
A: Subjective data and suicide
assessment in the light of recent legal developments. I. Malpractice
prevention and the use of subjective data. Int J Law Psychiatry,
in press
-
Fritter v. Cassidy, NWC 60672, C232092 (Cal.,
1983)
-
Scaria v. St. Paul Fire and Marine Insurance
Co., 227 NW 2d 647 (Wisc, 1975)
-
Zeleznik v. Jewish Chronic Disease Hospital,
366 NYS 2d 163 (1975)
-
Staloch v. Holm, 111 NW 264 (Minn., 1907)
-
Teig v. St. John's Hospital, 387 P. 2d 527
(Wash., 1963)
-
Eckleberry v. Kaiser Foundation Northern
Hospital, 359 P. 2d 1090 (Ore., 1961)
-
Bursztajn H, Gutheil TG, Hamm RM, Brodsky
A: Subjective data and suicide
assessment in the light of recent legal developments. II.Clinical
uses of legal standards in the interpretation of subjective data.
Int J Law Psychiatry, in press
-
Fiederlein v. City of New York Health and
Hospitals Corp., 80 App. Div. 2d 821, 437 N.Y. 2d 321 (1981)
-
Johnson v. United States, 409 F. Sup. 1283
(D. Fla. 1981)
-
Topel v. Long Island Jewish Medical Center,
431 N.E. 2d 293, 55 N.Y. 2d 682 (1981)
-
Natanson v. Kline, 350 P. 2d 1093, 354 P.
2d 760 (Kans., 1960)
-
Mainfort v. Giannestras, 111 NE 2d 692 (Ohio,
1951)
-
Bowers v. Talmage, 159 So. 2d 888 (Fla.
1963)
-
Mazur DJ: Translating court decisions into
ethical-legal guidelines for patient-physician communication about
medical risk. Presented at the Fifth Annual Meeting of the Society
for Medical Decision Making, Toronto, Canada, October 2-5, 1983
-
Gutheil TG, Bursztajn H, Brodsky A: Malpractice
prevention through the sharing of uncertainty. Informed consent and
the therapeutic alliance. N Engl J Med 311:49-51, 1984
-
Bigelow J, ed.: The Complete Works of Benjamin
Franklin (Vol. 4). New York: Putnam, 1887, p 522. Cited in Hogarth
RM: Judgment and Choice. The Psychology of Decision. Chichester,
England: Wiley, 1980, p 142
-
Hammond KR: Principles of organization in
intuitive and analytical cognition. University of Colorado, Institute
of Behavioral Science, Center for Research on Judgment and Policy,
Report No. 231, 1981
-
Tribe LH: Policy science. Analysis or ideology.
Phil Pub Affairs 2:66-110,1972
-
Seavey WA: Negligence-subjective or objective?
Harvard Law Rev 41:1-28, 1927