Patient Decision Aids Improve Patient Safety and Reduce Medical Liability Risk

Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions alone. Unfortunately, despite robust evidence of effectiveness, few U.S. clinicians use PDAs when they deliver healthcare services. This must change. It is time to move PDAs from research to practice, from the lab to the clinic. This Article describes a key tool that can nudge clinicians to use PDAs with their patients: the monetary incentive of a professional liability insurance premium reduction. Medical malpractice insurance companies should offer premium discounts to clinicians who use PDAs. This incentive will spur PDA use. And PDA use will improve patient safety. That benefits both patients and malpractice insurers. TABLE OF CONTENTS I. Introduction II. Unrealized Promise of Patient Decision Aids A. What Are Patient Decision Aids? B. PDAs Are Effective at Empowering Patients C. Too Few Clinicians Use PDAs III. Medical Liability Insurers Should Incentivize Clinicians to Use PDAs by Offering Premium Discounts A. Medical Malpractice Insurers Already Use Premium Discounts to Incentivize Other Risk-Reducing Conduct B. Offering Premium Discounts Will Spur Wider PDA Uptake IV. PDAs Reduce Liability Risk from Negligent Nondisclosure Claims. A. Medical Liability Insurers Face Significant Risk Exposure from Negligent Nondisclosure Claims 1. Negligent Nondisclosure Claims Are Common 2. Negligent Nondisclosure Claims Are Expensive to Handle B. Carrots and Shields: Using PDAs Enhances Liability Protection. 1. De Jure Safe Harbor Legal Immunity 2. De Facto Safe Harbor Legal Immunity C. Sticks and Swords: Failing to Use PDAs Increases Liability Risk for Negligent Nondisclosure 1. Disclosure Mandates and Presumptions of Negligence 2. Growing Liability Risk under the Reasonable Patient Disclosure Standard D. Using PDAs Reduces Risk by Improving Documentation V. PDAs Reduce Liability Risk from Other Medical Malpractice Claims A. Medical Liability Insurers Face Significant Risk Exposure from Medical Malpractice Claims B. PDAs Result in Better Outcomes and Fewer Claims C. PDAs Result in More Satisfied Patients Who Bring Fewer Claims VI. Conclusion