When patients and physicians meet

Virtually all patients hope, and some even hope against hope. Few surrender immediately to their illnesses. Biotechnology helps patients to hope, even to hope against hope. Broad-based astonishment at the extraordinary progress of medicine in the past few decades is a cultural phenomenon for which we must develop a feeling if we are to understand the expectations of patients.

Physicians naturally hope for the best for their patients as well. That physicians should establish better “connections” with their patients has become a regular theme in the literature of biomedical ethics.⁵ Some writers in this genre do a better job than others of bringing out the potential risks of establishing closer relationships with patients. One physician claimed in the Journal of the American Medical Association: “for me fulfillment comes from the sudden intimacies with total strangers—those moments when the human barrier cracks open to reveal what is most secret and inarticulate”.⁶ Another physician has strongly urged empathy in clinical encounters and has argued that passion is a part of that empathy.⁷

Some patients will expect their physicians to fill the role of a powerful paternal or maternal figure.⁸ By the same token, some physicians are only comfortable in relationships where they are taking care of and controlling others.⁹ Even aside from relatively marginal cases, emotions can pervade physician-patient relationships.

No matter what else it aims to be, the patient-physician relationship is a contract involving the exchange of money and services. Dr Timothy Quill has specified that four assumptions underlie the physician-patient contract: both the physician and the patient have unique responsibilities; the physician-patient relationship is consensual, not obligatory; both the physician and the patient must be willing to negotiate, and physician and patient each must gain something in their encounters.¹⁰ Nothing in this list contradicts a contractual description of marriage, which similarly stands on an exchange of money and services.

A number of experts in the field of biomedical ethics agree that the patient-physician relationship is “more a covenant than a contract”. This is not to say, however, that consensus exists on this point. The Western institution of marriage represents both a covenant and a contract. Broadly speaking, Western culture leads people to view matrimony as a covenant and, in so doing, encourages them to ignore the contractual nature of the institution. Married persons who face divorce for the first time frequently come to view the institution in a very different way—that is, as a contract. Patients disappointed by their medical care may well take a similar mental turn. Many medical malpractice suits begin in this way.

When prospective spouses meet

Aristotle marries fear and pity in a way that requires emotional proximity. Although Aristotle does not mean or even mention marriage, he introduces the notion of affective ties in a way that makes marriage relevant to a discussion of what happens when physicians and patients meet. Just as prospective spouses focus on positive outcomes, so too do prospective physicians and patients work from a natural aversion to bad thoughts. What can physicians and patients learn from the legal institution of marriage?

The American legal scholar Lynn Baker has usefully illuminated the contractual nature of marriage in various articles. She has pointed out that although there is little about the present legal procedures for getting married that would cause one to think that a contract is being entered into, the law has long explicitly characterised marriage as a legal “contract” among husband, wife, and the state.¹¹ When one marries, one agrees to be bound by the various laws that constitute the implied terms of the marriage contract. At the time one applies for a marriage licence, the state necessarily possesses the most complete possible “knowledge” of the legal terms of the marriage contract; however, it generally does not take any affirmative action to disclose even a portion of that information to the parties requesting to be married. Nor does the state require the spouses-to-be to demonstrate that they have grasped the terms of the contract into which they are about to enter. I take Baker's point to apply to European marriages as well as to American ones, although I acknowledge differences between the two (for example, monetary settlements for both divorce and malpractice tend to be higher in the US).

Negative outcomes

Baker's thinking raises a question regarding informed consent for persons engaged to be married that extends naturally to persons in search of a physician: why is it that the law does not compel patients to learn before choosing what the legal character and consequences of their acts are and, further, help them to predict with reasonable certainty the outcome of any subsequent adjudication regarding possible negative outcomes? Baker has elsewhere argued that people simply do not wish to consider the possible negative outcomes of a marriage contract. She has written: “[W]e ... seem to believe that knowledge of the law, even taken alone, is not always and unambiguously better than ignorance. For sometimes that knowledge comes at the cost of dimming, if not entirely dispelling, our most precious ideals and cherished hopes. And that price is one we cannot afford to pay.”¹² Prompting patients and potential patients to view their relationships as a covenant may be grounded in, and appeal to, their hope for recovery and may result in a susceptibility to overlook the contractual nature of their interaction with a physician.

In a separate work Baker surveyed marriage licence applicants and law students about their knowledge of divorce statutes, knowledge of the demographics of divorce, and expectations for their own marriage.¹³ Both groups had largely incorrect perceptions of the legal terms of the marriage contract as embodied in divorce statutes, but both groups had relatively accurate, if sometimes optimistic, perceptions of both the likelihood and the effects of divorce in the population at large. These same individuals expressed thoroughly idealistic expectations about both the longevity of their own marriages, as well as of the consequences of divorce. Increasing individuals' knowledge of divorce statutes through a course on family law did not diminish this unrealistic optimism. Baker's findings strongly suggest that the sense of surprise that frequently attends divorce may be a result of systematic cognitive biases rather than a lack of information about divorce.

Respondents' predictions for the permanence of their own marriages and the consequences should they be divorced were much more optimistic than their perceptions of the likelihood and effects of divorce for others. For example, although their median response was an accurate estimate that fifty per cent of American couples who marry will divorce, the median response of the marriage licence applicants was 0% when assessing the likelihood that they personally would divorce.

Aversion to bad thoughts

After reading Baker's work, it is not difficult to understand why prenuptial contracts are so rarely used and, later, their lack so often regretted. Baker's work may have something to say to clinicians who ponder the reasons why so few people have drawn up advance directives about end-of-life health care. The kind of thinking about patient-physician relationships outlined by the articles I have cited discourages questions about malpractice or unhappy endings. Just as persons tend strongly to dislike considering possible negative outcomes of matrimony, so might they strongly dislike thoughts of negative outcomes with physicians.

Perhaps the easiest way to avoid thinking of an unappealing possibility is to ignore the contractual nature of the relationship and to view that relationship as a loving covenant instead. For physicians, the importance of negotiating a proclivity to pity or feel compassion for her patients would seem to consist at least in part in recognising her own fears. The advantages to thinking of physician-patient relationships in largely business terms extend to patients as well: frank discussion of bad news grows out of genuine concern for patients. It would be cowardly for a physician to crouch with a patient behind illusions of safety or veils of undaunted optimism.

What I advocate, then, is a renewed focus on the contractual element of physician-patient relationships. There are, of course, objections to the view that a physician-patient relationship is more a contract than a covenant. Those who defend the covenant model at times criticise contracts as too individualistic, and at times as minimalistic (specifying only the moral minimum of the relationship). At other times the contract model is rejected as externalistic (emphasising external actions rather than the spirit of the relationship and the character of the agents), and legalistic (focused on legal enforcement). Those who prefer to discuss the patient-physician relationship in the language of loyalty and faithfulness rely on virtues rather than on principles and rules. Robert Veatch and other defenders of a contract model reply that a covenant is only a special form of contract that emphasises moral relationships such as fidelity; they also maintain that medical ethics is best understood in terms of a broader nexus of contracts between society, the professions, and patients. Tom Beauchamp and Jim Childress have brought this debate to life in various editions of their influential Principles of Biomedical Ethics.¹⁴

Perhaps the strongest justification for framing physician-patient relationships in terms of a covenant is that covenants seem to come down to one-sided promises between someone with power and/or wealth and someone less powerful or wealthy. In the last three decades, though, legal recourse has greatly increased the power of a patient to fight a physician. The very idea of a malpractice suit impoverishes the covenantal model of physician-patient relationships. That said, I have argued that patients tend to resist thinking of malpractice suits, more or less in the same way that the betrothed resist thinking about divorce.

Although my sympathy lies with Veatch ultimately, I think that reducing relationships between physicians and patients to any single metaphor (for example, confessor, parent, friend, spouse, expert consultant) or model will prove inadequate. The complexity of health care and the moral principles and rules that should govern such relationships compel us to think in broader terms than just contracts and covenants. One need not take a position in the debate over whether the patient-physician relationship is more a covenant than a contract in order to conclude that the contractual dimension of the relationship can usefully offset the marriage of pity and fear Aristotle illuminates.

The ethics of hoping

The problem of many patients includes an importantly psychological component: illness. threatens their connection to the vividness and vibrancy of the world. New medical technologies and the faith patients have in them make it easier than ever to seek to avoid the natural unpleasantness of thinking about illness. Hope seems ever more rational. Physicians ought to be aware of the potential pitfalls inherent in the psychological aspects of physician-patient relationships. And those writing in the fields of biomedical ethics and medical humanities ought not to disguise or sugarcoat those potential pitfalls. Managing the expectations of patients' demands sensitivity to their occasional delusions of control and the fragility of hope. Managing the expectations of patients requires vigilance over what Aristotle identifies as a natural tendency to indulge emotionally those we care about.