Legal obstacles to shared decision making

I’ve just finished Jack Wennberg’s book Tracking Medicine. It may be the most important book about the US health system I’ve read. It’s not perfect (an unfairly high standard), but it gets far more things right than wrong.* Do yourself a favor and read it.

Anyway, here’s a passage that made me want to hurl my iPad through a window in frustration:

Under current law, physicians who engage in shared decision making [SDM] may expose themselves to malpractice suits. In a now famous case, at least among family practice physicians, a young resident named Daniel Merenstein helped a middle-aged patient decide whether he wanted to undergo a PSA test. The patient decided against the test, but when he subsequently went to another physician, he was given one without his knowledge. The test showed his PSA was high, and a subsequent biopsy found advanced prostate cancer. The patient successfully sued the large family practice where Merenstein was training, despite extensive documentation by Merenstein that the patient was fully informed of the tradeoffs when he made his initial choice not to get tested.

Wennberg cites a paper by King, Stables, and Moulton (ungated pdf) that documents how the law is at odds with SDM. The paper is on my reading list.

* The one big thing wrong, in my view, is use of “flat of the curve” language even though elsewhere in the book the evidence that contradicts just that is provided. (See my simple argument.) My only other gripe, which applies to almost every book, is that it is repetitive, making it unnecessarily long. Almost no authors are succinct enough to satisfy me, so this is not a unique criticism. If you’re pressed for time, read Part IV (Chapters 13-16) first and consume earlier chapters of the book for the supporting evidence.


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