1 Robert A. Burt, Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations (New York: Free Press, 1979).Google Scholar

2 Id. at vi.Google Scholar

3 Sigmund Freud, An Outline of Psycho-Analysis, trans, and ed. James Strachey, 30, 38 (New York: W. W. Norton & Co., 1969). Freud stressed the importance of the patient's separate identity by warning the analyst not to try to remake the patient in his own image. “If he does,” wrote Freud, “he will only be repeating a mistake of the parents who crushed their child's independence by their influence, and he will be replacing the patient's earlier dependence by a new one. In all his attempts at improving and educating the patient the analyst should respect his individuality.”Id. at 32.Google Scholar

4 Burt, supra note 1, at 118–19.Google Scholar

5 Id. at 3.Google Scholar

6 Id.Google Scholar

7 Id. at 4.Google Scholar

8 Id. at 10. He did eventually hire an attorney. See text at note 73 infra.Google Scholar

9 This is despite the fact that the book contains extensive material that reveals Mr. G's thoughts, including an appendix of the dialogue between Mr. G and the psychiatrist.Google Scholar

10 Burt, supra note 1 at 12, 179–80.Google Scholar

11 Id. at 11–12.Google Scholar

12 Id. at 26.Google Scholar

13 Id.Google Scholar

14 Id. at 23. Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966).Google Scholar

15 Burt, supra note 1, at 66.Google Scholar

16 Id. at 61.Google Scholar

17 The full quote is as follows:. “As a physician I live in an aura of fear—fear of suit…. “It may be hard to believe but we are a frightened profession. The doctor feels put upon. He feels nude on the corner of the Main Street of life. He often tries to cover himself with pride, and even occasionally arrogance, only to find himself being castrated. He really doesn't want to believe the hostility he feels…. The faith of the patient is important to the patient and to his physician. Faith is a power, and the physician continually feels it being eroded by sometimes justified and frequently unjustified attacks.”. Id. at 193 n.23.Google Scholar

18 Id. at 94.Google Scholar

19 Id.Google Scholar

20 Mechanic points out that a patient may fail to take drugs because he feels well (even though the disease process may still be active in his body). “From the patient's commonsense perspective,” says Mechanic, “to stop medication or cancel a follow-up visit when he is feeling well, is logical.” David Mechanic, Response Factors in Illness: The Study of Illness Behavior, in Theodore Millon, ed., Medical Behavioral Science 354, 362 (Philadelphia: W.B. Saunders Co., 1975).Google Scholar

21 Burt, supra note 1, at 137.Google Scholar

22 Id.Google Scholar

23 Id. at 129.Google Scholar

24 Id. at 13.Google Scholar

25 But even a temporary label can be injurious. The stigmatizing effect of suspending children from school for ten days was found by the U.S. Supreme Court to be sufficiently injurious to the children's reputations (and thus to “the students' standing with their fellow pupils and their teachers as well as … later opportunities for higher education and employment”) to require that schools provide notice and a hearing before suspension. Goss v. Lopez, 419 U.S. 565, 575, 581 (1975).Google Scholar

26 Burt, supra note 1, at 141. But, elsewhere, Burt says that Mr. G could be forced to continue the painful chemical immersions that he was trying to avoid. Burt tries to justify this seeming departure from his proposal that only therapies to aid conversation be used by saying that the immersions should be allowed since they “were not central to and did not end the dispute between him and his physicians” and thus were “an inducement toward, rather than the end of, conversation.”Id. at 129. An inducement for whom? Maybe a pressure for Mr. G, but certainly not for the doctor.Google Scholar

27 Id. at 141.Google Scholar

28 Id. at 132.Google Scholar

29 Id. at 140. Burt sees his legal solutions as working in this manner: “by withholding that [judicial] review until the immediate participants have acted on their own disputed or agreed conclusions from that conversation, the law gives both participants a concrete demonstration that their conversation has an interminable, and comfortingly indestructable, dimension.”Id. at 138. But it's hard to fathom that the patient would be comforted to know that a doctor could operate on him against his will (or in Burt's more genteel terms “act on a disputed conclusion”) with the courts refusing to intercede until after that action occurred. And nowhere does Burt tackle the question of whether a person has a right not to engage in conversation.Google Scholar

30 See, e.g., Canterbury v. Spence, 464 F.2d 773 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972); Cobbs v. Grant, 502 P.2d 1 (Cal. 1972).Google Scholar

31 See, e.g., In re Estate of Brooks, 32 111. 2d 361, 205 N.E.2d 435 (1965). Even mentally ill patients have the right to refuse treatment. Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980). And a patient who is incapable of making a decision needs a surrogate decision maker who is not the doctor. Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).Google Scholar

32 Burt, supra note 1, at 97.Google Scholar

33 Id.Google Scholar

34 Id. at 40.Google Scholar

35 See text at notes 65–72 infra.Google Scholar

36 Burt, supra note 1, at 142.Google Scholar

37 Id. at 47.Google Scholar

38 Allowing a physician to declare a patient mentally ill when they disagree on a treatment implies that a patient who disagrees with his doctor is crazy. If that is how Burt feels, though, his arguments would be more palatable if framed in terms of protecting the patient from the potential physical harm of choosing an option not advocated by his physician as medically sound. Courts have already had experience in dealing with that matter in situations where, for example, a Jehovah's Witness refused a blood transfusion. Perhaps Burt focuses on psychological well-being rather than physical well-being because discussing the latter would force him to deal with the sticky issues already faced by the courts concerning self-determination, the right to refuse treatment, and the balance of an individual's values against society's.Google Scholar

39 If the goal is to assure acceptance of the medical model, there are more straightforward and efficacious methods for assuring patient compliance than Burt's legal system. The law could stop recognizing the patient's right to refuse treatment (much as it currently does not allow people to refuse vaccinations). I will not attempt to explore the constitutionality of such a proposal.Google Scholar

40 Burt says that many physicians and their legal advisers seek to reduce informed consent conversations to “stylized monologues in which they recite a litany of the statistics on risks and benefits of the proposed medical intervention and then offer the prospective patient a document for his signature ‘on the dotted line.’”Supra note 1, at 124. But he does not explain how his system would avoid that same result.Google Scholar

41 Id. at 99–100.Google Scholar

42 Cassileth, Barrie R. et at., Informed Consent—Why Are Its Goals Imperfectly Realized? 302 New England J. Med. 896, 898 (1980).Google Scholar

43 Burt, supra note 1, at 142.Google Scholar

44 Many doctors won't even take the first step and tell the patient he is terminally ill. For example, studies have shown that 60–90 percent of doctors will not disclose to patients that they have a terminal illness. Barney G. Glaser, Disclosure of Terminal Illness, in Millon, supra note 20 (citing H. Feifel, Death, in N. L. Farberow, ed., Taboo Topics 17 (New York: Atherton Press, 1963)).Google Scholar

45 Arnold J. Rosoff, Informed Consent Study and Patient's Rights, in materials for American Bar Association National Institute on Law and Medicine, San Francisco, Nov. 13–14, 1980, tab 8, at 2.Google Scholar

46 Ruth G. Elder, What Is the Patient Saying?in Millon, supra note 20, at 413.Google Scholar

47 Maguire, G. P., & Rutter, R. D., History-Taking for Medical Students, Lancet, Sept. 11, 1976, at 556.Google Scholar

48 Id.Google Scholar

49 Id. at 557.Google Scholar

50 Heifer, Ray E., An Objective Comparison of the Pediatric Interviewing Skills of Freshman and Senior Medical Students, 45 Pediatrics 623, 625 (1970).Google Scholar

51 Maguire, G. P. et at., Psychiatric Morbidity and Referral on Two General Medical Wards, Brit. Med. J., Feb. 16, 1974, at 268.Google ScholarPubMed

52 Peter Maguire, The Psychological and Social Sequelae of Mastectomy, in John G. Howells, ed., Modern Perspectives in the Psychiatric Aspects of Surgery 390 (New York: Brunner/Mazel, Publishers, 1976).CrossRefGoogle Scholar

53 Korsch, Barbara M. et at, Gaps in Doctor-Patient Communication, 42 Pediatrics 855 (1968).Google Scholar

54 A dialogue between doctor and patient cannot be achieved unless each party has the power to persuade the other. Yet there is a considerable body of evidence that the power of persuasion is operative only to the extent that the source of the communication is similar to the receiver. See, e.g., William J. McGuire, The Nature of Attitudes and Attitude Change, in 3 Gardner Lindzey & Elliot Aronson, eds., The Handbook of Social Psychology 187 (2d ed. Reading, Mass.: Addison-Wesley Publishing Co., 1969).Google Scholar

55 Even if they are not professionally equal, Burt sees some psychological equality. He says there are “important parallels” between the doctor-patient relationship and the parent-child relationship. Burt, supra note 1, at 65. He assumes that because the good parent finds “comfort in seeing himself alternatingly in control of, and under control of, his child” (id. at 67), the doctor and patient, too, will be able to accomplish the shifts between fusion and self-identity. But the two types of relationships are not interchangeable. The doctor is, after all, taking care of strangers, without the same emotional and social pressures that force parents to continue to work at their relationships with their children. Laws—such as laws against doctors abandoning patients and laws requiring that doctors get patients' consent—are necessary for the very reason that these emotional and social constraints do not exist. A parent, even the parent of an infant, may be more willing than a doctor to view himself as both the controller and the controlled since such a shift in decision-making authority does occur over time. Parents perceive that their children will ultimately care for them in their old age. But the patient never assumes the role of doctor.Google Scholar

56 Samora, Julian, Saunders, Lyle, & Larson, Richard F., Medical Vocabulary Knowledge Among Hospital Patients, 2 J. Health & Human Behavior 52 (1961), reprinted in W. Richard Scott & Edmund H. Volkart, eds., Medical Care: Readings in the Sociology of Medical Institutions 292 (New York: John Wiley & Sons, 1966).Google Scholar

57 Id. at 298.Google Scholar

58 Mechanic, supra note 20, at 356.Google Scholar

59 Zborowski, Mark, Cultural Components in Responses to Pain, J. Soc. Issues, No. 4, 1952, at 16. See also Zola, , Problems in Communication, Diagnosis and Patient Care, 10 J. Med. Educ. 824 (1963).Google Scholar

60 The differences between men and women in their willingness to communicate about illness may be one of the causes of the greater use of medical facilities among women as compared with men. See, e.g., O. Anderson, The Utilization of Health Services, in Harold E. Freeman, Sol Levine, & Leo G. Reeder, eds., Handbook of Medical Sociology (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1963).Google Scholar

61 Zborowski found that Anglo (or in his words, “Americanized”) doctors tend to distrust Jewish and Italian patients' reaction to pain. According to Zborowski, “The material suggests that [Americanized doctors] do tend to minimize the actual pain experiences of the Italian and Jewish patient regardless of whether they have the objective criteria for evaluating the actual amount of pain which the patient experiences.” Zborowski, supra note 59, at 23.Google Scholar

62 Burt, supra note 1, at 128.Google Scholar

63 Rose Laub Coser, A Home Away from Home, in Millon, supra note 20, at 381. Coser found that the pressures on patients not to give their own opinions were like those pressures on servicemen. She says that both servicemen and patients “unlearned” to make choices. Id. at 386. Coser cites an earlier work which says that the army and other such institutions. rob the individual of his sense of self-direction and ultimately damage the capacity for it. Virtue in such institutions consists in having no preference about many things; in eating whatever is put on the table, in wearing what one is told to wear, in going to bed and rising again according to instructions, in making the best of things. The good institution member does not make choices or decisions. He submits and permits himself to be carried along, as it were, in a “moral automobile.” When he returns to civilian life, his suddenly uncorseted soul seems flabby and incapable of standing alone. Id. at 387 (citing Willard Waller, The Veteran Comes Back [119] (New York: Dryden Press, 1944)).Google Scholar

64 Maguire & Rutter, supra note 47, at 557.Google Scholar

65 Philip G. Zimbardo, The Human Choice: Individuation, Reason, and Order, versus Dein-dividuation, Impulse, and Chaos, in William J. Arnold & David Levine, eds., Nebraska Symposium on Motivation 1969, at 237, 298 (Lincoln: University of Nebraska Press, 1969).Google Scholar

66 Burt, supra note 1, at 8.Google Scholar

67 Howard Leventhal, The Consequences of Depersonalization During Illness and Treatment, in Jan Howard & Anselm Strauss, eds., Humanizing Health Care (New York: John Wiley & Sons, 1975).Google Scholar

68 Id. at 156.Google Scholar

69 Zimbardo, supra note 65, at 237–307.Google Scholar

70 In one experiment, people in a general unexplained state of arousal attributed the arousal to either euphoria or anger depending on whether the person they were with was happy or angry. Schachter, Stanley, & Singer, Jerome E., Cognitive, Social, and Physiological Determinants of Emotional State, 69 Psychological Rev. 379 (1962).Google Scholar

71 Mechanic, supra note 20, at 365, points out that patients often seek care when they are distressed and “there is a large amount of evidence that distressed persons are highly suggestible and open to influence.”.Google Scholar

72 Burt describes the influence of authority brought to light in the Milgram experiment. Burt, supra note 1, at 72–91. Stanley Milgram, a Yale psychologist, conducted an experiment to assess the level of people's obedience to authority. The experimental subjects were told that the purpose of the experiment was to test individuals' ability to memorize random word associations. Each subject was introduced to the “learner,” who while appearing to be another subject, was actually a cohort of the experimenter. The subject was told to press levers to give the learner increasingly severe shocks for each wrong answer. Throughout the process, the subject did not realize that the learner was actually receiving no shocks, but convincingly acting as if he were, crying out in pain, and, if the shocks got high enough, even feigning a heart attack. When an experimenter dressed in a scientific technician's jacket told the subjects to proceed with shocking the learner despite his protests, two-thirds of the subjects complied and kept shocking to the deadliest, highest voltage. Id. at 74, 81. However, when not the scientist, but another man dressed in ordinary clothes told the subjects to go ahead, only 20 percent kept shocking to that dangerously high level. Id. at 81. This implies that the influence of a man of science is greater than that of an ordinary man in getting people to obey even a malevolent request. It is possible that this is also in effect in the medical care situation, with the patient being influenced to think that his doctor's desires (or the doctor's perception of the patient's desires) should be given more weight than his own. Burt himself notes that “The experimenter's invocation of the scientific ethos contained the same promise that physicians have traditionally offered patients to assist them in ceding their self-definitions to physicians.”Id. at 82.Google Scholar

73 Id. at 121.Google Scholar

74 Id.Google Scholar

75 For example, an important premise in Burt's system is that each individual has difficulty knowing and evaluating his own desires. However, Burt does not provide adequate support for that idea. He refers to the work of Kenneth Arrow, who demonstrated that the intensity of desires among people cannot be used to order social allocations because these desires are incommensurable. Kenneth J. Arrow, Social Choice and Individual Values (2d ed. New York: John Wiley & Sons, 1963). Burt then says “I think it [the incommensurability of desires] is equally a problem for each individual in knowing and evaluating his own desires.” Burt, supra note 1, at 55. But the analogy is imperfect. Arrow's theory presumed that individuals could order their own desires, and there is a great difference between the problems of social and personal ordering. While society might have difficulty evaluating which is the more pressing need—putting a man on the moon or providing heat in the winter to a section of the city—an individual (particularly one in a cold home) probably would be able to order these in importance.Google Scholar

76 Burt, supra note 1, at 137.Google Scholar

77 Id. at 118. Burt does the same thing with “re-cognition.”Id. at 129.Google Scholar

78 This is precisely the role of the ego in a mentally healthy individual. Freud, supra note 3, at 56.Google Scholar

79 Burt, supra note 1, at 32.Google Scholar

80 Id. at 157–58. Likewise, in the Milgram experiment (described in note 72 supra), the subjects had to make a decision (whether or not to deliver an apparently painful shock to another person), but they could do so without accepting responsibility since, when they hesitated, the experimenter told them, “The experiment requires that you continue”; “It is absolutely essential that you continue”; and “You have no other choice, you must go on.”Id. at 74. In fact, many compliant subjects continued shocking only after the experimenter agreed to take complete responsibility. Id. at 80–81.Google Scholar

81 Id. at 136.Google Scholar

82 Id.Google Scholar

83 This, particularly, is a situation where it cannot be argued that delay will save a patient from a wrong choice, since there is controversy among respected physicians as to which treatment—partial or radical mastectomy—is preferable. See, e.g., Anglem, Thomas, Management of Cancer: Radical Mastectomy, 230 J.A.M.A. 99 (1974), and Crile, George Jr., Management of Breast Cancer: Limited Mastectomy, 230 J.A.M.A. 95 (1974).Google Scholar

84 Failure of unhealthy persons to contact doctors is already widespread. Only one in three persons who reported illnesses in a household interview sought a physician's advice. White, Kerr L., Williams, T. Franklin, & Greenberg, Bernard G., The Ecology of Medical Care, 265 New England J. Med. 885, 890 (1961).Google Scholar

85 Burt, supra note 1, at 102.Google Scholar

86 Id.Google Scholar

87 See, e.g., Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905).Google Scholar

88 Ancient Charters and Laws of Massachusetts Bay 76–77.Google Scholar

89 Slater v. Baker and Stapleton, 95 Eng. Rep. 860 (K.B. 1767), cited in Bun, supra note 1, at 191 n.7. Burt tries to explain away the relevance of the early cases by saying that since the behavior of the physicians in them were remote from that of reputable professionals, the cases did not really deal with consent between physician and patient, but with a relationship between ordinary citizens. Burt, supra note 1, at 103. This is akin to saying that once a physician does something drastically wrong, he should be viewed as never having been a physician at all. This would certainly eliminate the existence of a doctors' malpractice problem (since anyone who malpracticed would not be considered a doctor), but such a semantic switch is just not valid.Google Scholar

90 William G. Rothstein, American Physicians in the Nineteenth Century: From Sects to Science 74–75 (Baltimore: Johns Hopkins University Press, 1972).Google Scholar

91 Moreover, the early medical codes of ethics were quite self-serving. The early AMA code had a section on “Obligations of Patients to Their Physicians,” saying that patients should not second-guess doctors and should be grateful. Id. at 173.Google Scholar

92 Id. at 41.Google Scholar

93 Id.Google Scholar

94 Burt, supra note 1, at 123.Google Scholar

95 Id. at 140.Google Scholar

96 Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977). “As this constitutional guaranty [of privacy] reaches out to protect the freedom of a woman to terminate pregnancy under certain conditions, Roe v. Wade [410 U.S. 113, 153 (1973)), so it encompasses the right of a patient to preserve his or her right to privacy against unwanted infringements of bodily integrity in appropriate circumstances. In re Quinlan [70 N.J. 10, 38–39].”Id. at 424. The court goes on to state that “The constitutional right to privacy, as we conceive it, is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life.”Id. at 426.Google Scholar

97 Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 110 (Baton Rouge: Louisiana State University Press, 1969).Google Scholar

98 The Supreme Court has noted the importance of specific standards for punishment, which Burt's system does not provide. “A system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman [Furman v. Georgia, 408 U.S. 238 (1972)] could occur.” Gregg v. Georgia, 428 U.S. 153, 195 n.46 (1976).Google Scholar

99 Burt, supra note 1, at 136.Google Scholar

100 Id. at 15.Google Scholar

101 Id. at 137.Google Scholar

102 In addition, the legal dialogue is intricately structured so that it may resolve the issue and thus may be preferable to other types of dialogues. James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression 807 (Boston: Little, Brown & Co. 1973).Google Scholar