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Nudging Patient Decision-Making

61 Pages Posted: 4 Oct 2017  

Wendy Netter Epstein

DePaul University - College of Law; University of Chicago Law School

Date Written: October 3, 2017

Abstract

Rational choice theory once pervaded the law. But we now know that individuals often make decisions that are not in their best interests. Many areas of the law have responded accordingly. The law of health care decision-making, however, has not.

With limited exception, patients have the right to make their own medical decisions about their treatment, even if they make bad decisions. And there is ample evidence from the behavioral sciences that they do make bad decisions. Patients lack the stable preferences that the law assumes they will draw upon in making decisions, and they suffer from a number of systematic decision-making biases. Bad decision-making negatively impacts the individual, but also the entire health care system that must bear the cost of poor decisions. Patient choice nonetheless remains a hallmark of legal doctrine.

This Article challenges the myopic approach that solely values autonomy to the detriment of well-being. It proposes that both doctors and patients instead be nudged toward the welfare-maximizing treatment choice by the establishment of a treatment default. A right to opt-out still protects autonomy, but the default will move most patients toward better decisions—those that data suggest will most increase patient well-being. We should no longer accept a regime that delegates the complex task of decision-making to often vulnerable patients without regard to their well-being.

Keywords: health law, health policy, rational choice, patient decision-making, autonomy, welfare, nudge

Suggested Citation

Epstein, Wendy Netter, Nudging Patient Decision-Making (October 3, 2017). Washington Law Review, Vol. 92, No. 1255, 2017. Available at SSRN: https://ssrn.com/abstract=3047239

Wendy Epstein (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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