Useless Medical Disclaimers
I recently underwent a minor bit of toe surgery and had to sign a scary-looking disclaimer form in which I acknowledged that there was a risk of infection, repeat surgery, chronic pain, amputation, spontaneous combustion, meteor strikes, and a plague of locusts o’er the land.
It was the most pointless damned form I’ve ever seen in a doctor’s office. What are the statistical incidences of any of these risks? Should I be more or less worried about dying in a car crash on the way home? Taken literally, that kind of “information” is absolutely useless for making decisions. You can’t translate something into an expected utility, even a qualitative and approximate one, if it doesn’t come with a probability attached.
Taken literally, saying that there is a “possibility” of infection tells me nothing. The probability could be 1⁄1,000,000,000,000 and it would still be technically correct to describe the outcome as “possible”. I’m not the litigious type, but I seriously wonder if it would be possible to sue based on the theory that “possibilities” with no probabilities attached to them are not useful information and therefore should not constitute a “disclaimer” under the law.
Staring at this pointless list of disasters, I also wondered why the form contained no useful information.
The thought that occurred to me was that, innumeracy being so widespread, no one would dare put numbers on that sheet of paper. If “amputation” is listed as a consequence with a probability of 0.0001%, patients will run screaming out of the office, crying, “Not my toe! I don’t want to lose my toe!” No amount of patient explanation will suffice to convince them that they ought to diminish the emotional force of their fear by a factor of one million. Each extra zero after the decimal point would only be one more symbol for their eyes to glaze over; it would not diminish the emotional force of the anticipation by an additional factor of ten.
And so I don’t get any useful statistical information! Hmph.
Clearly, innumeracy produces negative externalities and it ought to be regulated. In particular, we should impose a tax on people who can’t properly diminish the emotional impact of their anticipations by tiny probability factors.
Two classic objections to regulation are that (a) it infringes on personal freedom and (b) the individual always knows more about their own situation than the regulator. However, my proposed policy addresses both of these issues: rather than administering a math test, we can ask each individual whether or not they’re innumerate. If they do declare themselves to be innumerate, they can decide for themselves the amount of the tax to pay.
What do you think? Would this tax give people an incentive to become less innumerate, as standard economics would predict?
Without a warning, you have a distribution over the harm level, and with a warning you have another distribution over the harm level. If the distributions aren’t the same, you have learned something. Of course they could be even more informative if they gave you an actual number.
I’m not sure the reason for not giving a number is fear of offending the innumerate. I suspect lawyers instead advise against giving a number for fear one might be sued for giving a bad number.
Lotteries fail to discourage irrationality because the innumerate players’ warm feelings of imagining winning generally outweigh the pain of losing some money from the ‘disposable income’ fund in their mental accounts. However, if the innumerate are made poorer, catering to them will be less important to product designers even if they remain equally incompetent.
The flip side of this is that a more competitive economy with lower barriers to entry and higher returns to ability will increase the relative wealth of the rational, which can improve the world dramatically if they allocate some of their increased wealth to the task. Insofar as a winner-take-all economy produces large concentrations of wealth in the hands of people like Bill Gates, Warren Buffett, and Peter Thiel, it is a fantastic thing.
The meaning of these waivers is to reduce the things you can sue for to negligence. Thus, if I’ve told you amputation is a possibility even if I do everything right, you can’t complain afterward that you didn’t know amputation was a possibility. Note that you are still allowed to claim that my actions caused the need for the amputation. You can even claim (with associated evidence) that my rate of amputations is inexplicably higher than the background rate. This evidence is not really there to give you information about whether or not you should have the operation....
I once had a medical procedure preceded by this oral warning by the doctor: “Are there risks? Sure. But the risk is a lot greater if we don’t do it.” Concise and helpful; why say more? (Rhetorical question—you have to say more, even if it’s less useful, or the lawyers will get you. Someday, somewhere, a lawyer is going to base a case on a warning’s being too strong, and so discouraging the plaintiff from doing something that would have helped.)
As physician advised by malpractice co, those disclaimer are designed for potential law suit. Nowaday, unemployed or underemployed lawyers try to find any excuse to sue.
Without such claim, the procedure will be labeled as uninformed. If infection did happen, the plaintiff would say patient will never go through procedure had patient knew such risk existed. With very unsympathetic jury to most doctors, the verdict most time is againtst doctors/
MD,
Doctors win 73% of medical malpractice cases that go to trial. Perhaps your information suffers from a reporting bias: the narratives that physician-litigants are willing to tell others about, and that resonate with their peers, are those in which doctors are unjustly persecuted.
http://www.ojp.usdoj.gov/bjs/abstract/mmtvlc01.htm
This kills my enthusiasm for health courts. Thanks.
Two classic objections to regulation are that (a) it infringes on personal freedom and (b) the individual always knows more about their own situation than the regulator. However, my proposed policy addresses both of these issues: rather than administering a math test, we can ask each individual whether or not they’re innumerate. If they do declare themselves to be innumerate, they can decide for themselves the amount of the tax to pay.
What do you think? Would this tax give people an incentive to become less innumerate, as standard economics would predict?
I’m not sure I’m getting the joke. Obviously few or no rational actors would declare themselves innumerate under this scheme, and it doesn’t appear to provide any incentive whatsoever to become less innumerate under standard economic theory.
Am I missing something, or was your post?
The main purpose of medical tort law is to enrich trial lawyers. Doctors and trial lawyers play legal games in which the doctors try to minimize their liability with disclosures and the trial lawyers argue that the disclosures don’t offer legal protection for the doctors. There is little political incentive for anyone to care about the value of disclosure to patients. This is especially true since patients who care about such information will do their own research.
A lot of malpractice law suits end up settle out of court which will not be counted. For insurance company, court-trial is expensive. 70% win still only is tip of iceburge. Winning case is still costly for the insurance and MDs.
So the strategy is prevention of suit in the first place.
Settlement out of court include many reasons include small amount of claims, unwinnable cases, ect.
MD,
I was responding to the claim that “the verdict most time is againtst doctors” because juries are highly unsympathetic to doctors. In fact, that statement is erroneous: most verdicts are not against doctors. Are you claiming that in 50+% of all cases filed a jury would find for the plaintiff if the case were brought to trial? Would you say that juries were ‘unsympathetic’ if the result closely tracked the merits of the cases? (http://www.hsph.harvard.edu/press/releases/press05102006.html)
A case where a weak claim is approved by a villainous jury makes for a more interesting story than a case where a weak claim is defeated. Doctors will be reluctant to talk about cases where strong claims were defeated by their defense teams, or cases where they were lost and were clearly in the wrong. The memetic selection here is too strong to rely on physician water-cooler discussions.
Sullivan, the innumeracy tax is the lottery.
Have any evidence for any of these assertions?
Ian, not that exact scenario, but yes for the general phenomena of “scope neglect” (google), not to mention that people do buy lottery tickets!
We already have one. The lottery.