Judicial and legislative Viewpoints on Physician Misestimation of Patient Dysutilities

Appellate courts, state legislatures, and ethicists have recently (post-1972) been interested- through the evolving court doctrine of informed consent—in patient-physician joint decision making. Yet these professional groups' approaches differ markedly from that of decision analysis, failing to include an explicit role for patients' rational processing of information in informed consent. In addition, these groups charge that decision analysts are misestimating patient dysutilities. This paper examines three issues: 1) in what sense(s), if any, is decision- analytic work in individualized medical decision making misestimating patient dysutilities, 2) if this misestimation is real, whether it is an example of the normative-descriptive tensions that exist in medical decision making, and 3) in what ways do the relationships between decision-analytic and judicial decision making change when informed consent is viewed in terms of contract law as opposed to tort law. This paper argues that a key link dividing these professional groups is the differing weights given to the "value of information" by decision- analytic vs. non-decision-analytic frameworks. Key words: contract law; hazards; informed consent; legal (court, judicial) decision; malpractice; medical decision making; medical ethics; medical informed consent; medical risk; negligence; professional standards; reasonable person; tort law. (Med Decis Making 1990;10:172-180)