16 Pages Posted: 22 Dec 2010
Date Written: May 3, 2006
Starting with Justice Cardozo’s declaration in the 1914 Schloendorff decision that "[e]very human being…has a right to decide what shall be done with his own body," the courts have fitfully developed the doctrine of informed consent and recognized patients’ decisional authority. As Jay Katz has chronicled, Cardozo’s pronouncement augured in a revolution in medical decision-making, rejecting millennia of Hippocratic paternalism and "doctor knows best." Yet the rhetoric of patients’ rights has long outdistanced the clinical realities. Empirical studies of medical decision-making show continued failure to effectuate patients’ treatment preferences, even at the end of life. Judges continue to manifest ambivalence toward patients’ decisional authority, instead supporting physician reluctance to share dire prognoses and statistical life-expectancy data. Some scholars suggest that notions of patient autonomy go too far, and interpret data on patients’ decision-making preferences to suggest that patients want their doctor to decide for them.
All of this resistance to the revolution that Cardozo set in motion should come as no surprise. Upending millennia of practice is no small matter. This article analyzes the resistance manifest in the clinic, courtroom, and academy, offering answers to continuing reservations. Careful analysis of the empirical studies on medical decision-making suggests a significant generational effect. A century after Cardozo’s call to change, much has in fact changed, but transformation continues. That transformation is deeply dependent on broader cultural changes. As successive generation of physicians become more accustomed to disclosing data, advice, and uncertainty, successive generations of patients become more accustomed to seeking information, formulating preferences about their care, and asserting authority over their own body. Beyond doctrine and the rhetoric of bioethics, it is this generational shift that may ultimately secure the profound change Cardozo suggested.
Keywords: Doctor and patient; doctor-patient relationship; doctor-patient communication; physicians; medical decision-making; informed consent; patient autonomy; physician paternalism; patients’ rights; health law; bioethics; medical ethics; Jay Katz
Suggested Citation: Suggested Citation
Wolf, Susan M., Doctor and Patient: An Unfinished Revolution (May 3, 2006). Yale Journal of Health Policy, Law, and Ethics, Vol. 6, No. 2, pp. 487-502, 2006. Available at SSRN: https://ssrn.com/abstract=1729392