Nudging Patient Decision-Making

By Epstein, Wendy Netter | Washington Law Review, September 1, 2017 | Go to article overview

Nudging Patient Decision-Making


Epstein, Wendy Netter, Washington Law Review


INTRODUCTION

Perhaps it is unsurprising that patients are entrusted to make decisions regarding their own medical treatment. This doctrinal choice seems to satisfy two goals simultaneously. It protects patients' rights to self-determination-to make personal decisions concerning their own bodies. It also assumes that well-informed patients will draw on their personal preferences to make the decisions that will be the best for them. The problem, however, is that ample evidence now suggests that patients often do not make the decisions that are best for them.1 Bad patient decision-making not only has consequences for individual patients, but also for the entire health care system, which bears the costs of those bad decisions.2 Yet health care policymakers and lawmakers have so far remained steadfast in their commitment to the status quo.

Many other areas of the law started in the same place, putting similar trust in individual decision-making. But when it became clear that fully informed individuals frequently did not act as theory anticipated, the law responded.3 In some areas, that meant regulating away choices that people should not make. Traditional contract law assumed that rational parties would only enter into contracts that would make them better off. When flaws in the assumption were revealed, modern contract law responded with the ascendancy of doctrines like unconscionability and with regulations to protect people from their own bad choices.4 For instance, the Credit Card Accountability Responsibility and Disclosure Act of 2009 prevents consumers from entering into contracts with credit card companies that would ultimately be welfare-reducing.5

And where paternalistic measures were criticized as government coercion, libertarian paternalism emerged as a compromise.6 Policymakers began to use tools to shape individuals' choices, making it more likely that an individual would select the best option, without mandating such a choice. One example is the strategic use of defaults. Because defaults are sticky-meaning that choosers tend to remain in the default position even if they would not have actively chosen it-policymakers now frequently select defaults that will make most individuals better off. The assumption is that few will opt-out, although defaults preserve their option to do so.7 In consumer finance, some mortgages are now structured such that escrowing taxes and insurance-to ensure that individuals have sufficient funds put aside to make those payments when they come due-is the default. Consumers may choose to opt-out after the first year, but by making "opt-in" the default, the result is that many more individuals are protected from the consequences of failure to pay. Having the protection is in most individuals' best interests.8 Many legal fields, including property law and criminal law, have also responded to evidence that human decision-making often does not produce optimal results, either by regulating or by "nudging"9 to more desirable decisions.10

The law of health care decision-making has not followed suit-but it should. While the entrenched doctrine seems to respond to both concerns about patient autonomy and patient well-being, evidence from the behavioral sciences suggests it is a ruse.11 Patient choice may further the value in self-determination-although there is reason to even question that12-but the law's reliance on patient choice as a dependable proxy for patient well-being is highly flawed.

Patients suffer from a number of systematic decision-making biases that will often prevent them from choosing treatment options that will most increase their own well-being.13 In particular, research from the emerging field of hedonic psychology has shown that people exhibit substantial "affective forecasting errors" that lead them to erroneous predictions about how future experiences will make them feel.14 An individual might think life is over if a limb is lost, but in fact, most people adapt well in such circumstances. …

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