Silent Decisions or Veiled Paternalism? Physicians Are Not Experts in Judging Character

Abstract

silent decisions, physicians would almost certainly be subject to liability for failing to disclose material risks or treatment alternatives. One of the clinical scenarios provided by the authors illustrates the danger inherent in their approach to silent decisions. They would remain “silent” on the possibility of providing oral isotretinoin for a sexually-active 19-yearold with severe acne who does not want to use long-term contraceptives and who has become pregnant twice in the past year despite receiving what they note should be effective short-term contraception (Whitney and McCullough 2007, 33). The medication, which can cause severe birth defects to a fetus, is highly effective in cases of severe acne. The authors seem to believe that keeping “silent” on the potentially devastating effects of the prescription drug on a pregnant woman’s fetus will prevent the young woman from placing herself into a potentially harmful situation. The unspoken assumption is that unless the physician tells the patient about the medication, she will remain blissfully ignorant of its existence. But teenage girls talk. They also share acne medications. If not warned of the potential danger of isotretinoin—in an open honest discussion regarding why her physician is not prescribing the clearly useful drug for her acne—there is a real risk the teenager will learn of the medication from a friend and unwittingly use it to improve her appearance. The deliberate attempt to withhold information that the “average reasonable individual” in the patient’s condition would find material to her decision-making about the drug would backfire if the sexually active young woman becomes pregnant while experimenting with how much more effective a friend’s isotretinoin might be than her tube of benzoyl peroxide. The treating physician would face potential liability for that non-disclosure, even if the physician could raise the defense that the young woman’s use of isotretinoin was not under a physician’s direction. “Physician silence,” as this example illustrates, not only is not “golden,” it can be positively harmful to the patient’s health.