Close to a decade ago, the Institute of Medicine (“IOM”) report, Crossing the Quality Chasm: A New Health System for the 21st Century, identified “patient-centeredness” as a core health care aim for the new century, “focus[ing] on the patient’s experience of illness and health care and on the systems that work or fail to work to meet individual patients’ needs.” To many observers, the IOM’s statement seemed unnecessary and self-evident: what aim could any health care system have but to serve the needs of its patients, the sine qua non of medicine? Yet the report was replete with references to patients’ widespread “frustration with their inability to participate in decision making, to obtain information they need, to be heard, and to participate in systems of care that are responsive to their needs.” While initially focused on problems in clinical encounters, the patient-centered care movement has now grown to encompass systems-level structural concerns as well. As conceptualized more broadly, a patient-centered approach to health care makes “serving the practical health care needs of patients (1) the focal point of the health care system, (2) the paramount responsibility of health professionals, and (3) the primary role of private and public financing [of] health care.” That transformation is not possible without close attention not only to the norms of medical practice, but also to the legal structures and rules that govern the provision of health care in the United States.
Now, as the debate over patient-centered care moves from the bioethics and health policy spheres to the legal arena, a central question emerges: can our system of health law, as distinct from our standards of medical ethics, truly become patient centered? Certainly, there is reason for skepticism. The sad truth is that health law has not, historically, been particularly good at being patient centered. Many of our efforts to protect patient interests— be those interests physical, psychological, or financial—have fallen far short of the goal. The complexities of the legal system offer a highly imperfect mechanism for achieving ethical ideals. Law by necessity relies on practical rules of general applicability—rules that themselves may become barriers to reaching the very goals they are designed to achieve. Experience has shown us that ethical precepts tend to translate into limited legal rules that at best protect only a small subset of patients, and at worst co-opt the language of patient-centeredness for other agendas entirely. This does not mean, of course, that we should not expect—and even demand—that health law do more. But we must be mindful of these problems, lest our renewed efforts to achieve patient-centeredness suffer a similar fate.
