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Shared planning: a new foundation for quality criteria.

The Chinese word for crisis has two characters. One for danger and one for opportunity. A crisis is a time for awakening to new perspectives and for asking different questions. The widely touted "liability crisis" in the health care field provides just such a time for new approaches. Perhaps there is a way to establish market mechanisms for decisionmaking that gives expression to the desires and values of consumers while respecting the abilities and preferences of physicians. Quality might then be the result of natural selection or, more accurately, of market demand. Such a system would acknowledge that quality in medicine is not for defining. it's for having. Quality should be obtained in bargaining for services, not in mandates of professional regulation.

A report on the - report on the 1988 National Conference on Health Care Leadership and Management' of the American College of Physician Executives revealed another impending liability crisis, unique in the dilemma it presents the health care field, yet resting firmly on 20 years of runaway costs and mounting pressures from all sides of the professional and institutional liability equation. Henry Simmons, MD, President of the National Leadership Commission on Health Care, said at the conference that medical practice norms should be questioned and reminded his audience of the assertion by Arnold Relman, MD, Editor of the New England Journal of Medicine, that 20-30 percent of health care is unnecessary.

A decade of inventive delivery mechanisms that have provided only pricing variables has left providers free to sell anything and benefits managers realizing they purchase health care services without knowing what they are paying for. Of course, everybody wants quality, but we have no data on quality.

Quality Criteria Controversy

National Conference showed that physicians define quality in terms of knowledge and training. Consumers, on the other hand, see quality in terms of having medical care explained to them in a dear and understanding way. Finally, corporate billpayers will most assuredly want meaningful allocation of resources and treatment efficacy. A year later, we still have a liability crisis. We also have a dilemma.

Contract Care

In an article last year in the Annals of Internal Medicine,2 I suggested that adversarial relationships could be transformed by doctor-patient agreements that clarify common misunderstandings that undermine relationships, generate unfulfilled expectations, and lead to disputes and litigation. The article surveyed the 13 years of frustration since publication of Epstein's "Medical Malpractice: The Case for Contract"3 and reminded us that a President's Commission has suggested that "shared decisionmaking" replace informed consent as the ideal, warning that the impetus for change will not come from the courts.4

Current definitions of medical respbility are founded on academic standards of practice. They do not contemplate patients' values and preferences. The judicially imposed doctrine of informed consent has been hampered by controversy over its boundaries and its standards. Its implementation in practice has remained defensive, preserving adversity at the clinial level. Doctors tell me that its requirements are unclear, that the formality is awkward, and that it is a confusing context for patient choice. Its discussion generates communication barriers and obscures attempts to learn the patient's goals.

The informed consent doctrine didn't come from the professional ranks. It's a judicial throwback from the defense of consent in the law of battery, ancestor to the tort of medical malpractice. By modifying it with informed," courts are essentially saying that the risks and alternatives need mutual understanding. Is this what the parties think they need? It depends really. There are other factors, such as how parties are working together, i.e., what roles they have chosen to play.

Informed consent can be seen as a conceptual steppingstone from tort to contract. Three other decisionmodels--medical authority (traditional), collaboration (joint decisions), and patient choice--offer more precision and provide greater clarity than "informed consent," which in practice usually means seeking compliance.

In relationships we are always working ourselves in one direction or the other between adversity and agreement. Prior agreements about decision making, when combined with agreements regarding scope of professional responsibility, the complementary responsibilities of both parties, and the time frame for these agreements, create a legal contract capable of reversing the direction of relationships that are deteriorating toward adversity and conflict. Such agreements can be documented in a medical rather than a legalistic style. Professional and public education on shared decision making should precede attempts to impose caps on damages and other possible limits on judicial remedies.

The confusing transition toward contract care, which is a natural evolution similar to that seen in other areas, such as products liability, is slow because of competing self-interest in the system. It can be facilitated and accelerated by professional and public education about the fundamental elements of defining and allocating responsibility by agreement.

Shared Planning

Contract care means working within a shared plan that broadens the base of medical decision making from informed consent to encompass more options. It places the relationship on more predictable legal grounds than when responsibility is founded on common law notions. Medical standards of practice, to the extent that they refer to judicial concepts of liability rather than to professional custom, are also tort concepts. They need not be abandoned, but they will take their rightful place in contract care as the basis for defining the scope of professional responsibility. This shift not only holds the promise of clarifying misunderstandings that generate unrealistic expectations but also lays a foundation for the reassertion of professional control over judicially determined standards of practice.

Medical Management Challenges

The quality criteria dilemma also reflects the historic crossroads of science and communication. Following the achievement of great technological progress under the hegemony of scientific thought, personal values are now growing at a greater rate than scientific values and require more consideration in the delivery of health care services.

There are resources to allocate and budgets to balance. The heat is on. If management doesn't come up with solutions, we are faced with increasing government involvement. And if the system is in need of fundamental changes, more bureaucracy will only rigidify existing parameters and make professionally directed reform even more difficult. The challenge for management is to develop professional and public education about shared decision making in a manner that makes sense to physicians and gives expression to growing consumer interest in assuming more responsibility for health. Shared planning already exists to some degree. Every physician practices with a combination of implied and express agreements reflecting his or her skills, preferences for assuming responsibility, and ability to define roles expressly. A professional education program will succeed if it begins by evaluating current patterns of practice and identifying those patterns that generate misunderstandings and warrant changing. Physician preferences and room for individual differences require preservation. Their interest and cooperation will support this delicate effort if doctors are encouraged to examine their own patterns and practices rather than told to make prescribed changes. Greater awareness of the uses of implied and express agreements win increase express agreement and produce clearer implied terms naturally.

Professional and Public Education

Management can initiate the transition to shared decisionmaking by encouraging staff to consider and discuss published material on the subject and to begin keeping track of shared plans in standard record keeping. Notes of discussions concerning express agreements about purpose, complementary responsibilities, term, and decision-making preferences can be summarized following a reference to shared plan between patient and physician. This practice can be encouraged prior to any formal professional education on contract care, thereby focusing attention on existing practices of shared planning through express agreements. Greater professional support for shared planning will emerge if public education programs are developed out of and follow professional education on the subject. Guidelines for public education can thereby evolve to suit the preferences and objectives of physicians. Educational materials can prepare patients for shared planning and document the process in a nonlegalistic manner by soliciting their preferences for assuming responsibility.

Coordination and Research

Health care institutions can make a real difference in the rate and manner in which we develop contract care. The natural evolution that Epstein wrote about in 1976 could take 30 to 50 years and is being slowed by vested self-interest in the professional liability sector and our current pricing and reimbursement systems. As the foundations of responsibility and decision making shift to negotiating tables at the clinical level where they belong, au other dimensions of the system will have to accommodate.

Changes in the system could be reactive or they could be intelligently planned and coordinated. The transition would be facilitated by having a coordinating influence capable of researching creative innovations in care delivery and offering suggestions to those who are developing professional and public education. Reforms in the area of employee benefits, where the savings of sharing plans may add economic incentives to educational programs, and changes in the practices of third-party payers win be enhanced by research and coordination. The American College of Physician Executives would be an ideal place to begin such pioneering work. 13


1. Curry, W. "Health Care Part of New Economic Era." Physician Executive 14(3):2-4, May-June 1988.

2. Green, J. "Minimizing Malpractice Risks by Role Clarification. The Confusing Transition from Tort to Contract. " Annals of Internal Medicine 109(3):234-241, Aug. 1, 1988.

3. Epstein, R. Medical Malpractice: the Case for Contract." American Bar Foundation Research Journal (1):87- 149, Winter 1976.

4. President's Commission for the Study of Ethical Problems in Medicine and Biomedical Research. Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship. Washington, D.C.: U.S. Government Printing Office, 1982.


Jerry A. Green, J.D., has specialized in the legal aspects of medical malpractice and health care licensing since 1972. He presides over Medical Decisionmaking institute, Mill Valley, Calif., which offers professional education on shared decision making in health care.
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Title Annotation:medical care
Author:Green, Jerry A.
Publication:Physician Executive
Date:May 1, 1989
Previous Article:Stakeholder issues for the physician executive.
Next Article:The evolving role of the medical director.

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