Document Type

Article

Publication Date

2004

Abstract

This Article responds to the work of Professor Mark A. Hall, who has written an accompanying essay in reply, published in the same issue of the Wake Forest Law Review.

This Article identifies an emerging medical trust movement and challenges its normative claim that, as a matter of policy, the law should be used to preserve, if not promote, trust in medicine. Key to this challenge is the fact that the emerging movement defines medical trust in emotional terms as a kind of faith that goes beyond rationally based confidence. First, because the movement defines medical trust as faith, it mistakenly assumes that public perception of our health care system must attain an emotional pedigree before health care can be maximally effective or efficient. Yet, this is inconsistent with evidence that the public relies on our health care delivery system despite its highly institutionalized and impersonal nature that undermines the very faith in medicine that the emerging movement claims to be necessary. Second, pursuing faith in medicine as a matter of policy, as suggested by the emerging movement, would conflict with decades of work designed to make savvy health care consumers out of patients. Patients displaying the emotional kind of trust espoused by the emerging movement are compliant and unlikely to question medical authority, and so a policy of encouraging such trust through law effectively encourages a more docile patient. This could undercut the ability of patients to protect themselves in today's medical marketplace. Third, the emerging trust movement teaches that once emotional trust in health care is lost, it is difficult if not impossible to regain. Consequently, a policy of encouraging faith in medicine will likely abandon those who have lost their faith. In light of recent studies indicating that racial and ethnic minorities are less trusting of physicians and health care institutions, the burden of the movement's proposed policy to encourage faith in medicine could fall disproportionately on racial and ethnic minorities. Finally, a policy of pursuing faith in medicine through law would limit lawmakers to styles of regulation that defer to health care industry insiders to regulate themselves. This is because self-regulation most clearly signals that faith in health care providers is warranted while command-and-control regulations signal that such faith is unjustified. Thus, if law is to encourage faith in medicine, then lawmakers must presume to rely on self-regulation to oversee health care delivery and must generally avoid command-and-control regulation. As a result, the proposed policy of the emerging medical trust movement will limit the ability of lawmakers to protect consumers from dangers associated with our market-based health care delivery system. Given inconclusive evidence of the necessity of faith to good health care and given the risks of promoting faith in medicine through law, this Article concludes that the law should not attempt to promote faith in medicine, but instead should encourage rational confidence in health care. A shift from faith to confidence is a shift from promoting emotional dependence on the good will of health care providers to promoting rational observation of the competence and interests of those providers. By orienting health policy toward consider confidence, the law may be able to achieve the advantages of faith-oriented health policy while also avoiding its drawbacks.

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