Fear of the Law

The Canterbury v. Spence case brings our attention to the ethical issues of risk disclosure of a medical procedure. This type of case involves and compares the importance of several pillars of ethics: autonomy, benevolence and malevolence. There seems to be a question that is very difficult to answer, and may differ on a case-to-case basis: Does, “every human being of adult years and sound mind has a right to determine what shall be done with his own body…” (an issue of autonomy) trump a doctor acting in the patient’s best interest and avoiding harm to the patient (benevolence/malevolence)? (https://ereserves.library.emory.edu/reservesViewer.php?reserve=563719) It’s convenient to believe that the legal system keeps people on a moral path and helps people make decisions that are ethically sound and in the best interest of society as a whole. But in some cases, fear of the law may cause more issues than it does good.

Risk of a procedure is not the only type of information that doctors potentially keep from their patients. There is also the issue of disclosing errors that may have occurred during the process of a patient’s care. According to an article in Ghana Medical Journal (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709172/) doctors often do not tell patients or their families when an error has occurred, whether it be in surgery or anything else related to the patient’s health care. Instead, the doctors and institutions tend to try and cover up these events to avoid legal issues. In this case, the doctors are putting their own well being above that of their patients. According to the report, healthcare errors lead to more deaths than motor vehicle accidents, breast cancer or AIDS in the US. (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709172/).

Putting your life, or the life of a loved one in the hands of a human, capable of error, is an act of immense trust. The article refers to the doctor-patient relationship as fiduciary; “one who owes to another the duties of good faith, trust, confidence and candour”. This is trusting the doctor to act in best interest of the patient. However, can a doctor do that if he is worried about the consequences of an error? If he puts his own well being before that of the patient’s?

In class, we have talked about the importance of intention in ethics. When it comes to health care and medicine, if someone’s life is at stake, people tend to care less about intention and more about the outcome. If an error results in a patient’s death, the family cares little about the doctor’s intention to do good, the focus is on the error that resulted in death. This is the responsibility and punishment that the doctor must shoulder as a casualty of his daily work.

Here we have two different types of disclosure: risk disclosure before a procedure, and disclosure of any errors after a procedure. For the first, the law helps to encourage doctors to share all possible complications with the patient, to avoid lawsuits should anything go wrong. For the second, the threat of the law dissuades doctors from disclosing human error events that may have occurred. This would lead us to the assumption that doctors’ morals are rooted in fear of the law rather then intrinsic human nature.

However, this is not always the case. Like in the Canterbury v. Spence case, doctors sometimes choose to not share some information that they believe may do more harm then good. They take the risk of the potential lawsuit in their effort to do what they believe is best for the patient. In this case, the doctor is putting the patient’s well being above his own. So which is more important, the patient’s autonomy or the doctor’s duty to do what he feels is best for the patient?



Edwin AK. Non-disclosure of medical errors an egregious violation of ethical principles. Ghana Med J. 2009;43(1):34–9. [PMC free article] [PubMedhttp://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709172/?report=classic

Informed Consent: Opinion Canterbury v Spence https://ereserves.library.emory.edu/reservesViewer.php?reserve=563719 Physicians’ obligations and patients’ rights.


3 thoughts on “Fear of the Law

  1. I found this argument very thought-provoking. I never truly considered reasons why Doctors do not always fully disclose information. It always seemed as if they were being dishonest because listing the potential failures and side effects could turn the patient away from a money-making operation. It is evident that sometimes it is in the patient’s best interest to not fully disclose all potential failures, because the surgery could be life or death and negative information could prevent the patient from following through with the operation; therefore, ultimately hurting them more. Not disclosing information that would do more harm than good is one thing, but not telling patient’t about what went wrong during the procedure is another. This is completely dishonest, and I agree that it shows sometimes Doctor’s morals are rooted in fear. To answer your question about which is more important the patient’s autonomy or the Doctor’s duty to do what he feels is best for the patient, I believe both need to work together. I think a patient’t autonomy is definitely more significant, because he/she is the one being operated on and should not be told what to do no matter how irrational the decision might be. However, a Doctor should encourage what he/she feels is best for the patient, especially in a life or death situation and if subtle persuasion does not do the trick, then nothing can be done about it. So ultimately, a patient and the Doctor need to collaborate ideas on what is best for the patient’s well-being. This link is also very relevant to patient autonomy http://www.ama-assn.org//ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion812.page

  2. Unfortunately, professionals are often put on a pedestal; they can do no wrong. However, people should realize that all professionals are just like them — they are human, which means they too make mistakes. Doctors are no exception, and while it may be necessary to disclose to their patients when they make a mistake, some accidents would be better if they were not be shared. A patient may already be nervous about the treatment that they are undergoing, and knowing that there was an error in treatment might completely scare the patient who might wish to discontinue the treatment. However, what they may not realize is that the mistake may be common or easily fixable, and stopping their treatment could be riskier than allowing the medical professional to correct the error. Nevertheless, patients should be informed as soon as possible about the error as long as it will not compromise their well-being, and mishaps should definitely be disclosed if it leads to irreversible injury, harm, or death of the patient.

  3. To understand why this question is difficult, I had to put myself into two different sets of shoes and consider the extremes of both perspectives. As a future doctor, I would always want to be open about mistakes made during a procedure, even if it doesn’t affect the patient outcome. Revealing such errors could be beneficial if complications arise for that patient in the future. But what if revealing even a minor error could jeopardize my career? This is the fear that doctors have to grapple with. Even though frivolous lawsuits only account for a small percentage of malpractice claims, doctors have heard lots of horror stories about revoked licenses and exorbitant claims. On the other hand, as a patient, I want to have the autonomy and power to protect myself against negligence and malpractice. Even though only a small pool of negligent doctors account for a huge majority of malpractice cases, patients too have heard the horror stories. (Google Jayant Patel, who unfortunately shares my last name. According to wikipedia, this guy was responsible for 87 deaths among the 1,202 patients he treated between 2003 and early 2005.)

    The extreme cases and outliers fuel the fear that hinders doctor-patient relationships. Yes, there’s a risk of being sued after disclosing certain information with patients, but it’s not as prevalent as one might think. Patients that genuinely like their doctors and know that they have good intentions are not likely to sue for an error that didn’t affect the outcome of the procedure. In short, I am understanding more and more why communication and interpersonal skills are so essential for doctors to build. In order to work confidently and without fear of the law, they have to be able to demonstrate their intentions well and build a trusting relationship with every patient. Without this, a culture of openness and patient autonomy is difficult to achieve for the reasons you mentioned.

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