Regulating Physician Behavior: Taking Doctors’ 'Bad Law' Claims Seriously

Sandra Johnson's superb article, "Regulating Physician Behavior: Taking Doctors’ 'Bad Law' Claims Seriously," was just posted to SSRN, making it more readily accessible to non-lawyers.  This article is a masterful review and elucidation of deep legal problems underlying medical futility disputes.  Here is the abstract.  

Physician behavior is a key target of government regulation intended to improve the efficiency, quality, and accessibility of health care. Yet according to physicians’ “bad law” claims, the legal effort to promote patient health and well-being has actually caused significant harm. These “bad law” claims - that malpractice litigation prompts defensive medicine, that patients’ rights policies prompt doctors to provide futile care, that controlled substance laws cause physicians to undertreat patients in pain - have diminished in significance due to the deconstruction of professionalism. Claims are often discarded as the cries of “bad apple” doctors or in the interest of creating a more egalitarian or consumer-oriented model of medicine.

This article argues that physicians’ “bad law” claims should be taken seriously. The way physicians react to legal requirements can negatively impact the effectiveness of the law and the quality of patient care. Thus physician behavior must be included as an important factor in the effort to evaluate and improve the performance of the law. Taking seriously physicians’ “bad law” claims is a first step to understanding how physicians react to legal risks and consequently, how well laws perform.

This article begins by addressing the dynamic relationship between the health law reform agenda and the medical profession.  Part II considers categories of physicians’ “bad law” claims, recognizing that some may be dishonest or misinformed but arguing that many claims have credence as legitimate responses to extralegal shadow systems or truly harmful legal standards.

Part III assesses common responses to physicians’ “bad law” claims. Providing specific examples, the article argues that current responses - e.g. educating doctors on the law; immunity statutes; safe harbor provisions - are inadequate because they fail to account for the realities of the medical professional or the nature of the law.

Finally, Part IV makes two recommendations for taking physicians “bad law” claims seriously and thereby effectively evaluating and improving the reform effort. First, it advocates evaluating the law through its population-based effects on physician behavior. Second, it recommends tailored monitoring and investigative processes that allow formal legal standards rather than policy decisions to govern the regulatory process.