At Law: Duty, Truth, and Whole Human Beings

Abstract

No one likes to be the bearer of bad tidings. While physicians' behavior regarding disclosure of lethal conditions (especially cancer) has changed radically over the past twenty years, many still understandably find it daunting to have to disclose an incurable condition to a patient. Are patients nonetheless entitled to rely on their physicians to be candid about their prospects, including limited life expectancy? To the extent that such questions have been addressed by the courts over the past thirty-five years, it has been in the context of disclosing what a patient deciding about treatment would have needed to know, especially about allegedly undisclosed risks that eventuated in injury. This preoccupation with risk diverts attention from the more relevant question of the alternative medical futures a patient faces depending upon the choices he or she makes. A recent appellate decision in California may, however, signal a change. Although the facts of Arato v. Avedon[1] allowed the court to focus on those aspects of the case closest to traditional informed consent litigation, the door opened to a much broader perspective on physicians' duties to their patients. Arato is affirmed on appeal by the California Supreme Court and followed by other courts, the law could instead concentrate on the overall course of care, and the extended process of disclosure, discussion, and decisionmaking regarding care, were properly respectful of the patient's right of self-determination.[2] I Want to Be Told the Truth On 21 July 1980, while removing Miklos Arato's nonfunctioning kidney, surgeons discovered and removed a six-inch tumor from his pancreas. After the pathologist confirmed that the tumor cancerous, the surgeon referred Arato for an oncologic consultation but did not tell the Aratos that pancreatic cancer spreads easily and only five percent of its victims survive for five years, nor did he provide any other information on life expectancy. When Melvin Avedon, the oncologist, met with the Aratos he stated that Arato was at risk for two types of recurrence,... and that if he should develop such recurrence, it would mean his disease not cured, and in fact his disease would then be incurable. Dr. Avedon proposed a combination of radiation and chemotherapy that had been shown experimentally to be effective in other forms of pancreatic cancer. He said the treatment might prevent recurrence but might have no benefit at all. At this first meeting, [Dr.] Avedon gave Arato an 18-page questionnaire to fill out. Among the questions was: If you are seriously ill now or in the future, do you want to be told the truth about it? Arato circled yes in answer to the question. Arato also verbally asked that he be told the truth. Although Dr. Avedon and other physicians participating in Arato's treatment thought it likely that he would die of the cancer, none of them told him about his probable life expectancy. Similarly, in April 1981, when test results showed the cancer had probably recurred and Dr. Avedon believed Mr. Arato's reasonable life expectancy would be short, measured in months,... Dr. Avedon did not tell that to Arato. When Arato hospitalized late in June, Dr. Avedon told him that although he no longer curable, could try to make things better so that he might have some good time ahead. Arato apparently did not want to discuss this, so Dr. Avedon went to Mrs. Arato and asked whether he should confront Arato further because of any outstanding issues that needed to be resolved, perhaps through consultations with lawyers or accountants. Mrs. Arato said that they should not give him further information. Discharged from the hospital on 5 July, Arato rehospitalized on 21 July and died four days later. …