Twerski and Cohen's second revolution: a systems/strategic perspective.

A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment. Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170,181 (Cal. Ct App. 1957) [S]tate health data organizations are . . . weapons of revolution. Their common purpose is to take power away from the... providers of care and give it to the buyers. MICHAEL L. MILLENSON, DEMANDING MEDICAL EXCELLENCE 355 (1997) In a pathbreaking article published in 1992, Aaron Twerski and Neil Cohen suggested that basic principles of the law of informed consent required medical providers-doctors, hospitals, and health maintenance organizations (HMOs)--to tell their patients about competing providers who could perform the same procedures better or more safely.1 In its 1996 decision in Johnson v. Kokemoor, the Supreme Court of Wisconsin cited Twerski and Cohen's article in holding a neurosurgeon liable for not telling a patient of such a competitor.2 Twerski and Cohen's most recent article, published in this issue of the Northwestern University Law Review, focuses on the legal issues left undecided in that case.3 They argue convincingly that existing legal doctrine compels recognition of the new duty and that the unresolved legal issues are manageable. Only in their title and a single dry sentence in their conclusion do they acknowledge the potential magnitude of the change they propose: "We recognize that our conclusions will engender controversy because they may lead to significant changes in the delivery of health care."4 The new duty Twerski and Cohen propose has potentially shocking implications for the heath care system. Empirical studies show meaningful differences among medical providers on such important parameters as the proportion of patients who survive treatment.5 If the least successful providers must advise their patients of the identities of the most successful, the latter may be swamped and the former may end up with no patients at all. Careers and institutions may be destroyed in the process.6 Given that the "comparative provider statistics" that would drive the process are far from perfect, the careers and institutions destroyed may not always be the right ones.7 With careers and institutions at stake, at least some medical providers will respond strategically by fudging the data they report and refusing treatment to patients whose limited prospects may adversely affect the providers' rankings.8 Such problems pale, however, in comparison with the benefits that could flow from the new duty. Public rankings delivered to the consumer at the point of decision have the potential to directly save lives by facilitating good choices among alternative providers,9 and to improve care overall by providing incentives for providers to make constructive changes.10 In a legal system frightened of "judicial activism," implications such as these are generally considered irrelevant. The court's job is to determine the requirements of the law, not what will work best. Accordingly, the Kokemoor court stated the facts of the case, reviewed Wisconsin's law of informed consent, outlined the standards for review, and then considered the defendant's legal contentions regarding proper application of the law to the facts. The social and economic implications referred to above made only a cameo appearance in the court's opinion, in the form of the familiar "slippery slope" argument: "Finally, the defendant argues that if his duty to procure the plaintiffs informed consent includes an obligation to disclose that she consider seeking treatment elsewhere, then there will be no logical stopping point to what the doctrine of informed consent might encompass."11 The court responds in an equally formalistic manner that "[i]n the vast majority of significantly less complicated cases, such a referral [to another physician] would be irrelevant and unnecessary. …