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Duty, truth, and whole human beings.

No one likes to be the bearer of bad tidings. While physicians' behavior regarding disclosure of lethal conditions (especially cancer) has changed radically over the past twenty years, many still understandably find it daunting to have to disclose an incurable condition to a patient. Are patients nonetheless entitled to rely on their physicians to be candid about their prospects, including limited life expectancy?

To the extent that such questions have been addressed by the courts over the past thirty-five years, it has been in the context of disclosing what a patient deciding about treatment would have needed to know, especially about allegedly undisclosed risks that eventuated in injury. This preoccupation with risk diverts attention from the more relevant question of the alternative medical futures a patient faces depending upon the choices he or she makes.

A recent appellate decision in California may, however, signal a change. Although the facts of Arato v. Avedon[1] allowed the court to focus on those aspects of the case closest to traditional informed consent litigation, the door was opened to a much broader perspective on physicians' duties to their patients.

If Arato is affirmed on appeal by the California Supreme Court and followed by other courts, the law could instead concentrate on "whether the overall course of care, and the extended process of disclosure, discussion, and decisionmaking regarding care, were properly respectful of the patient's right of self-determination."[2]

"I Want to Be Told the Truth"

On 21 July 1980, while removing Miklos Arato's nonfunctioning kidney, surgeons discovered and removed a six-inch tumor from his pancreas. After the pathologist confirmed that the tumor was cancerous, the surgeon referred Mr. Arato for an oncologic consultation but did not tell the Aratos that pancreatic cancer spreads easily and only five percent of its victims survive for five years, nor did he provide any other information on life expectancy.

When Melvin Avedon, the oncologist, met with the Aratos he stated that Mr. Arato "was at risk for two types of recurrence,... and that if he should develop such recurrence, it would mean his disease was not cured, and in fact his disease would then be incurable." Dr. Avedon proposed a combination of radiation and chemotherapy that had been shown experimentally to be effective in other forms of pancreatic cancer. He said the treatment might prevent recurrence but might have no benefit at all.

At this first meeting, [Dr.] Avedon

gave Mr. Arato an 18-page questionnaire

to fill out. Among the

questions was: "If you are seriously

ill now or in the future, do

you want to be told the truth

about it?" Mr. Arato circled "yes"

in answer to the question. Mr.

Arato also verbally asked that he

be told the truth.

Although Dr. Avedon and other physicians participating in Mr. Arato's treatment thought it likely that he would die of the cancer, none of them told him about his probable life expectancy. Similarly, in April 1981, when test results showed the cancer had probably recurred and Dr. Avedon believed "Mr. Arato's reasonable life expectancy would be short, measured in months,... Dr. Avedon did not tell that to Mr. Arato."

When Mr. Arato was hospitalized late in June, Dr. Avedon told him that although he was no longer curable, "they could try to make things better so that he might have some good time ahead." Mr. Arato apparently did not want to discuss this, so Dr. Avedon went to Mrs. Arato and asked whether he should confront Mr. Arato further because of any outstanding issues that needed to be resolved, perhaps through consultations with lawyers or accountants. Mrs. Arato said that they should not give him further information. Discharged from the hospital on 5 July, Mr. Arato was rehospitalized on 21 July and died four days later.

"Do What Is Best for the Patient"

The trial court dismissed several causes of action that Mrs. Arato and their children brought against Mr. Arato's physicians, but allowed the jury to consider the case on the theory that the physicians had breached their fiduciary duty fully and fairly to disclose material information. The plaintiffs claimed not only that Mr. Arato might have chosen not to undergo the time-consuming and painful treatments but also that the Aratos would have redone their wills (for tax reasons), would have disposed of his electrical contracting business, and would not have entered into other transactions that required his expertise for their success.

Over the plaintiffs' objections, the trial court permitted the defendants and other physicians to testify as experts to establish the standard among competent physicians regarding the disclosure of life expectancy information to patients. The jury returned a verdict for the defendants, finding that they had not been negligent in their medical management and had provided adequate information to enable Mr. Arato "to make an informed decision regarding the proposed treatment."

The conventional part of the plaintiffs' appeal concerned whether the instructions to the jury adequately conveyed that in California--as in about half the states--the standard of disclosure by physicians is set by the law (what would be significant to a reasonable person in the patient's position) rather than by practices within the medical community. At defendants' request, the instructions on disclosure ended with a statement that could have been taken from the Hippocratic canon: "However, the [law] recognizes that the primary duty of a physician is to do what is generally best for the patient."

Because the jury was told it must base the standard of care it applies to professional conduct (including disclosure) only on the opinions of the experts who testified, the court of appeal found the instructions misleading; it also concluded that the trial court had erred in allowing expert testimony on the community standards in providing life expectancy information. It reversed and ordered a new trial.

Had this case involved only the effect of disclosure on Mr. Arato's decision to undergo treatment, the trial court's instructions would be just one more illustration of what critics see as the hesitancy of judges to subject the professional discretion of their medical colleagues to lay review, even when the law officially proclaims such expectations. The case also illustrates the difficulties in knowing what constitutes "the truth" under such circumstances and in deciding whether the failure to disclose one fact (life expectancy) turns what was disclosed (that a recurrence of cancer would be incurable) into a deluding half-truth.

But the heart of the plaintiffs' claim goes beyond decisionmaking about chemotherapy and radiation to the relevance of life expectancy information to Mr. Arato's general existence. On this point, the court of appeal faced a delicate task because the state's supreme court has handed down many landmark rulings on medical disclosure. This may explain the somewhat strained aspect of the Arato opinion, as the court labored to fit what is really a case of first impression within existing case law.

Enough to Decide about Treatment

The courts have articulated physicians' duty of disclosure in several contexts. The major one, already noted, is tied to the notion that lack of material information invalidates physicians' authority to intervene in patients' bodies. In its 1980 decision, Truman v. Thomas,[3] the California Supreme Court moved away from the "unconsented touching" rationale and rested liability solely on breach of the duty to disclose. The plaintiff in Truman claimed harm from nonintervention--the physician's failure to detect cancer because the patient had forgone Pap smears without being told the risks of doing so.

A decade later, the court made clear that the duty to disclose is not limited to risks but encompasses any personal interests of the physician that might affect his or her professional judgment--in that case, potentially lucrative medical research using material taken from the patient's body.[4] Yet the scope of disclosure was again based on what is "material to the patient's decision" about treatment.

One line of cases--cited but not discussed by the majority in Arato--does recognize a physician's duty to disclose information outside the context of treatment decisionmaking, namely, when the lack of candor delays a patient's filing an action for malpractice. Although the law establishes physicians' duty as fiduciaries fully to disclose "all facts which materially affect [their patients'] rights and interests,"[5] it is not grounded in an examination of the physician-patient relationship but in the general principle that fraudulent concealment of information by a person holding a position of trust tolls the statute of limitations.[6]

Our Bodies, Our Selves

Unfortunately, rather than acknowledge the novelty of the claim before it, the Arato court presented its results as mere application of existing law. Perhaps the state's highest court (which is not constrained in the same way) will accept this opportunity to enunciate a more robust view of the physician-patient relationship.

Even the broadest dictum in current case law--to the effect that the purpose of informed consent is to ensure that "patients might meaningfully exercise their right to make decisions about their own bodies"[7]--is too narrow, for it is our lives and not merely our bodies about which we have decisions to make. Beyond patients' general orientation toward disclosure ("Please tell me the truth"), it doesn't seem too much to ask physicians to make reasonable efforts to communicate with and learn about their patients as people, not merely "making decisions" (about medicine and other matters) but living in a web of relationships as human beings with a past and a future. In this way, the right to truth from the physician would finally be acknowledged as "a sacred right for its own sake, besides its practical bearing on a person's extra-medical arrangements in response to such a truth."[8]


[1.] 11 Cal.Rptr.2d 169, 13 Cal.App.4th 1325, rev. granted, 13 Cal.Rptr.2d 474, 839 P.2d 983 (1992). [2.] President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, D.C.: U.S. Government Printing Office, 1982), p. 26. [3.] 27 Cal.3d 285, 165 Cal.Rptr.308, 611 P.2d 902 (1980). [4.] Moore v. Regents of University of California, 51 Cal.3d 120, 271 Cal. Rptr. 146, 793 P.2d 479 (1990). [5.] Bowman v. McPheeters, 77 Cal.App. 2d 795,176 P.2d 745 (1947). [6.] See Theodore R. LeBlang and Jane L. King, "Tort Liability for Nondisclosure: The Physician's Legal Obligations to Disclose Patient Illness and Injury," Dickinson Law Review 89 (1984): 1, 35-45. [7.] Truman v. Thomas, 27 Cal.3d at 292, citing Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972). [8.] Hans Jonas, "The Right to Die," Hastings Center Report 8, no. 4 (1978): 31-36, at 34.
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Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Jul 1, 1993
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