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American Society of Law and Medicine




Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.7 The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.8 President Clinton was elected at least in part because he promised Americans universal health insurance coverage, but that promise has been all but abandoned, at least for the short-run. Moreover, unless health care funding increases dramatically, universal coverage would force limits on services that insured Americans are accustomed to receiving. This raises the politically charged specter of rationing.9 The rationing theme may also be detected in a handful of reported legal opinions. 0 The patient sovereignty central to informed consent doctrine in the U.S.'s death-denying society poses serious obstacles to this collective trend. In countries where health care is publicly financed, disclosure requirements are much less explicit, and local law may actually discourage doctors from revealing information about diagnosis, prognosis, and alternative forms of treatment.

We theorize in this Article that the content and the style of imparting medical information can profoundly affect a country's total health expenditures." We believe a society's general attitude toward death (as well as other cultural influences), will shape the type and amount of information that individual patients receive. In this Article we explore the cultural role and the economic impact of telling patients the truth about what doctors actually know-or don't know-about their medical conditions, and about therapy that might help (but could also harm) them. We concentrate particularly on truth-telling concerning prognosis when life-threatening illness has been diagnosed, because this dramatic case most clearly reveals systemic values."2 The analysis focuses on the United States, with comparisons to informed consent law in the United Kingdom 3 and Japan. 4 We look specifically at the cultural determinants of medical practice in each country in Part II, and at the law which affects physician-patient interaction in Part III. We believe that a society's cultural attitude toward death strongly affects its approach to health sector finance, and we explore that interplay in Parts IV and V. These factors in turn influence the information the law requires doctors to provide their patients/consumers.

Finally, we conclude in Part VI that what doctors truthfully tell U.S. patients about prognosis and treatment alternatives, and about the degree of scientific uncertainty associated with their illnesses, will affect the way health service allocation takes place in the future. We suggest that when U.S. patients are more honestly informed about prognosis, and about the negative aspects of many aggressive therapies, public perceptions about the definition and desirability of limiting health services-particularly, but not only, for terminal illness-will change. We also examine the implications for Japan and the U.K. should they adopt U.S. technology and informed consent rules.

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