Public Health Law Map - Beta 5 - Medical and Public Health Law Site

the proposed treatment. This weights the standard toward disclosure, since each
juror is more likely to add to the list of necessary information than to argue that
another’s concerns are unreasonable.
b) Alternative Treatments
The reasonable-person standard both increases the amount of information that the
patient must be given and changes the substance of that information. The
community standard is concerned with the old question of treatment versus no
treatment. The reasonable-person standard is concerned with the modern problem
of choosing among alternative treatments. To make an informed choice, the patient
must be told about the risks and benefits of all the acceptable treatments and the
consequences of no treatment. This becomes a sensitive issue because specialty
practice lines are often based on a particular approach to treatment. Surgeons do
not like to discuss the medical management of patients, and family practitioners are
reticent to recommend highly technical procedures for conditions that may be
managed more conservatively.
The disclosure of alternative treatments is crucial when the physician is being
pressured by a third-party payer to steer the patient to less expensive treatments.
The patient must be informed of alternative treatments and their relative benefits. If
the physician believes that an alternative treatment is preferable to the treatment
that the third- party payer is advocating, the patient must be told of this conflict.
The physician must never imply that a financially motivated treatment decision is
medically preferable. Financial considerations must be explicitly discussed, or the
physician commits a fraud on the physician–patient relationship.
Perhaps the most significant difference between the community standard and the
reasonable-person standard is the presentation of the physician’s personal
recommendations. The community standard rests on the inherent coercion of
forcing the patient to choose between treatment and no treatment: between
continued care by the physician and loss of care. The reasonable-person standard,
with its emphasis on alternatives, allows the patient to reject a given treatment
without rejecting the physician. This change in emphasis reflects the reality of
contemporary medical practice. In a competitive marketplace, physicians need
patients as much as patients need physicians. This recognition of mutual
dependence is beneficial unless it results in physicians’ advocating trendy
treatments to gain a marketing edge.
c) Statutory Disclosure Standards
Certain states and the federal government mandate specific disclosures in certain
situations. Texas is a good example because it has the most detailed requirements.
The Texas Medical Disclosure Panel, a statutory body consisting of physicians and
lawyers, promulgates lists of procedures and the risks that a patient must be told
about each procedure. In some cases, the panel mandates more disclosure than was
283