Alternative Treatments
The reasonable-person standard both increases the amount of information that the patient must be given and changes the substance of that information. The community standard is concerned with the old question of treatment versus no treatment. The reasonable-person standard is concerned with the modern problem of choosing among alternative treatments. To make an informed choice, the patient must be told about the risks and benefits of all the acceptable treatments and the consequences of no treatment. This becomes a sensitive issue because specialty practice lines are often based on a particular approach to treatment. Surgeons do not like to discuss the medical management of patients, and family practitioners are reticent to recommend highly technical procedures for conditions that may be managed more conservatively.
The disclosure of alternative treatments is crucial when the physician is being pressured by a third-party payer to steer the patient to less expensive treatments. The patient must be informed of alternative treatments and their relative benefits. If the physician believes that an alternative treatment is preferable to the treatment that the third- party payer is advocating, the patient must be told of this conflict. The physician must never imply that a financially motivated treatment decision is medically preferable. Financial considerations must be explicitly discussed, or the physician commits a fraud on the physician–patient relationship.
Perhaps the most significant difference between the community standard and the reasonable-person standard is the presentation of the physician’s personal recommendations. The community standard rests on the inherent coercion of forcing the patient to choose between treatment and no treatment: between continued care by the physician and loss of care. The reasonable-person standard, with its emphasis on alternatives, allows the patient to reject a given treatment without rejecting the physician. This change in emphasis reflects the reality of contemporary medical practice. In a competitive marketplace, physicians need patients as much as patients need physicians. This recognition of mutual dependence is beneficial unless it results in physicians’ advocating trendy treatments to gain a marketing edge.