Unnecessary adversaries at the end of life: Mediating end-of-life treatment disputes to prevent erosion of physician-patient relationships

Boston University Law Review

Volumn 79, Issue 5, 1999, Pages 1091-1133

  Gatter, Robert ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

TRUST;

ANALYTICAL APPROACH; ARTICLE; BIOETHICS AND PROFESSIONAL ETHICS; DEATH AND EUTHANASIA; DECISION MAKING; DISSENT; DOCTOR PATIENT RELATION; ETHICS CONSULTATION; FAMILY; HUMAN; INTERPERSONAL COMMUNICATION; PROFESSIONAL PATIENT RELATIONSHIP; PROFESSIONAL STANDARD; TERMINAL CARE; UNITED STATES;

ANALYTICAL APPROACH; BIOETHICS AND PROFESSIONAL ETHICS; DEATH AND EUTHANASIA; DISSENT; ETHICS CONSULTATION; PROFESSIONAL PATIENT RELATIONSHIP; TRUST;

COMMUNICATION; DECISION MAKING; ETHICS COMMITTEES, CLINICAL; FAMILY; HUMAN; LEGISLATION; NEGOTIATING; PHYSICIAN-PATIENT RELATIONS; TERMINAL CARE; UNITED STATES;

EID: 0033302317     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (297)

1. There are other types of EOLT disputes, such as those concerning the validity or meaning of an advance directive or those about choosing a decision-maker for an incompetent patient who does not have any advance directives. While these can include EOLT disputes between physicians and their patients or their patients' decision-makers, they are more likely to be disputes among members of a patient's family.
2. See In Re Quinlan, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) (holding that life support can be terminated from patients in persistent vegetative states if ethics committees confirm the patients' prognosis).
3. See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 278 (1990) (drawing inference that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment").
4. See Paula C. Hollinger, Hospital Ethics Committees and the Law, 50 MD. L. REV. 742, 744 (1991) ("Beginning with the Quinlan case . . . and continuing through the recent Cruzan decision, families, patients, and health professionals have become increasingly concerned with life and death decisions complicated by evolving medical technology and the recent onset of rationing health care.").
5. The phrase "physician-patient EOLT dispute" as used in this Article refers to disputes about end-of-life treatment in which the disputants are the patient and the patient's treating physician or, if the patient is incompetent, the patient's decision-maker (usually a family member) and the patient's treating physician. Thus, the term "patient" in "physician-patient EOLT disputes" incorporates both a competent patient acting on his or her own behalf and anyone acting as the medical decision-maker on behalf of an incompetent patient. Accordingly, the phrase "physician-patient EOLT dispute" does not include EOLT disputes between the patient and the patient's family.
6. See Diane E. Hoffmann, Mediating Life and Death Decisions, 36 ARIZ. L. REV. 821, 822 (1994) (identifying types of disputes, including cases that "have involved disputes where the health care provider wishes to terminate treatment and the patient's family members desire that everything be done for the patient").
7. See Robert A. Gatter, Jr. & John C. Moskop, From Futility to Triage, 20 J. MED. & PHIL. 191, 191-94 (1995) for an overview of the concept of futility.
8. See infra notes 110-11. See also Diane E. Hoffmann, Regulating Ethics Committees In Health Care Institutions - Is It Time? 50 MD. L. REV. 746, 747-48 (1991) [hereinafter Hoffmann, Regulating Ethics] (explaining the motivations behind the establishment of ethics committees). See infra notes 114-20 and accompanying text for an overview of ethics committee proceedings).
9. See infra notes 110-11. See also Diane E. Hoffmann, Regulating Ethics Committees In Health Care Institutions - Is It Time? 50 MD. L. REV. 746, 747-48 (1991) [hereinafter Hoffmann, Regulating Ethics] (explaining the motivations behind the establishment of ethics committees). See infra notes 114-20 and accompanying text for an overview of ethics committee proceedings).
10. See infra notes 110-11. See also Diane E. Hoffmann, Regulating Ethics Committees In Health Care Institutions - Is It Time? 50 MD. L. REV. 746, 747-48 (1991) [hereinafter Hoffmann, Regulating Ethics] (explaining the motivations behind the establishment of ethics committees). See infra notes 114-20 and accompanying text for an overview of ethics committee proceedings).
11. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
12. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
13. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
14. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
15. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
16. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
17. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
18. This approximation is based upon estimates of the number of active ethics consultation services existing in U.S. hospitals and of the frequency at which those services consult on physician-patient EOLT disputes. There are roughly 5400 accredited hospitals in the country of which approximately 84%, or 4536, have ethics committees. See Robin Fretwell Wilson, Hospital Ethics Committees As the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. REV. 353, 356-57 (1998). See also Hoffmann, Regulating Ethics, supra note 8, at 747 (noting that a substantial majority of hospitals have ethics committees). Of these, approximately 95%, or 4300, provide ethics consultations. See Robyn S. Shapiro et al., Wisconsin Healthcare Ethics Committees, 6 CAMBRIDGE Q. HEALTHCARE ETHICS 288, 290 (1997) (finding that 95.5% of responding hospital ethics committees in Wisconsin report providing ethics consultations). These committees on average consult on five cases each year. See Diane E. Hoffmann, Does Legislating Hospital Ethics Committees Make a Difference? A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 LAW MED. & HEALTH CARE 105, 110 (table 10) (Spring, Summer 1991) (concluding that 53% of hospital ethics committees surveyed had performed 0-5 case consultations during the survey year, 20% had performed 6-10 case consultations, 17% had performed 11-15 case consultations, and 10% had performed 16 or more case consultations); Susan E. Kelly et al., Understanding the Practice of Ethics Consultation: Results of an Ethnographic Multi-Site Study, 8 J. CLINICAL ETHICS 136, 138 (table 1) (1997). Of these, the vast majority involve EOLT disputes. See id. at 139 (table 2) (stating that six of nine consultations clearly involved end-of-life treatment); Mary Beth West & Joan McIver Gibson, Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques, 1 CAMBRIDGE Q. OF HEALTHCARE ETHICS 63, 68 (1992) ("The content of [ethics committees] consultations most often involves interdisciplinary concerns . . . and end-of-life issues such as life-support treatment decisions and 'medically futile' treatment."); Hoffmann, Study of Hospital Ethics Committees, supra at 110 (reporting that in a survey of the types of cases most frequently heard, 87% were about withdrawal of a patient from a ventilator). Assuming most of these are physician-patient EOLT disputes, a conservative estimate is that active ethics committees, on average, consult on two physician-patient EOLT disputes each year.
19. In 1995, there were approximately 16,700 nursing homes in the United States. January 23, 1997 press release, United States Department of Health and Human Services, Americans Less Likely to Use Nursing Home Care Today, (updated Jan. 27, 1997) 〈http://www.cdc.gov/nchswww/releases/97news/97news/nurshome.htm〉. Assuming nursing homes operate ethics committees with active consultation services at the same rate as hospitals, approximately 13,300 of them have active ethics consultation services. See supra note 9. If these nursing homes provide approximately the same number of consultations per year as hospitals (an average of five per hospital per year, see id.), we should expect that approximately 4900 physician-patient EOLT disputes arise in nursing homes each year for which third-party dispute resolution assistance is sought. This is because physician-patient EOLT disputes likely account for only about 7.5% of all bioethical disputes addressed by nursing home ethics committees. See NAOMI KARP & ERICA J. WOOD, COMMISSION ON LEGAL PROBLEMS OF THE ELDERLY, AMERICAN BAR ASSOCIATION, KEEP TALKING, KEEP LISTENING: MEDIATING NURSING HOME CARE CONFLICTS, App. A at 1-2, 7 (1997) (two of twenty-seven disputes were physician-patient EOLT disputes).
20. In 1995, there were approximately 16,700 nursing homes in the United States. January 23, 1997 press release, United States Department of Health and Human Services, Americans Less Likely to Use Nursing Home Care Today, (updated Jan. 27, 1997) 〈http://www.cdc.gov/nchswww/releases/97news/97news/nurshome.htm〉. Assuming nursing homes operate ethics committees with active consultation services at the same rate as hospitals, approximately 13,300 of them have active ethics consultation services. See supra note 9. If these nursing homes provide approximately the same number of consultations per year as hospitals (an average of five per hospital per year, see id.), we should expect that approximately 4900 physician-patient EOLT disputes arise in nursing homes each year for which third-party dispute resolution assistance is sought. This is because physician-patient EOLT disputes likely account for only about 7.5% of all bioethical disputes addressed by nursing home ethics committees. See NAOMI KARP & ERICA J. WOOD, COMMISSION ON LEGAL PROBLEMS OF THE ELDERLY, AMERICAN BAR ASSOCIATION, KEEP TALKING, KEEP LISTENING: MEDIATING NURSING HOME CARE CONFLICTS, App. A at 1-2, 7 (1997) (two of twenty-seven disputes were physician-patient EOLT disputes).
21. See infra notes 172-74 and the accompanying text concerning accreditation standards of the Joint Commission for the Accreditation of Healthcare Organizations and the federal government's adoption of those standards through Medicare regulations.
22. See MD. CODE ANN., HEALTH-GEN. II §§ 19-370 through 19-374; N.J. ADMIN. CODE tit. 8, 43G-5.1(h) (1997).
23. See MD. CODE ANN., HEALTH-GEN. II §§ 19-370 through 19-374; N.J. ADMIN. CODE tit. 8, 43G-5.1(h) (1997).
24. See MD. CODE ANN., HEALTH-GEN. II §§ 19-370 through 19-374.
25. See N.Y. PUB. HEALTH § 2972.
26. See id.
27. See infra notes 175-78 and accompanying text concerning state laws that encourage, but do not require, ethics consultation services to arbitrate treatment disputes.
28. See infra notes 114-21 and accompanying text for an overview of the ethics consultation process.
29. See id.
30. See, e.g., In re Westchester County Medical Ctr., 531 N.E.2d 607, 609 (N.Y. 1988) (facts suggest that attending physician with whom patient's decision-makers disagreed about the use of a nasogastric feeding tube remained the patient's attending physician throughout the resolution of the dispute, including at the initial ethics committee meeting); Conservatorship of Morrison, 253 Cal. Rptr. 530, 532 (Ct. App. 1988) (patient in persistent vegetative state continues to be treated by attending physician and stays at hospital despite disagreement between her decision-maker and the physician and hospital about terminating life-sustaining treatment). In my experience as an ethics committee member and an ethics consultant, physicians routinely seek an ethics consultation to help resolve EOLT disputes between themselves and their patients or patients' family members before transferring care of the patient to another physician.
31. See, e.g., In re Westchester County Medical Ctr., 531 N.E.2d 607, 609 (N.Y. 1988) (facts suggest that attending physician with whom patient's decision-makers disagreed about the use of a nasogastric feeding tube remained the patient's attending physician throughout the resolution of the dispute, including at the initial ethics committee meeting); Conservatorship of Morrison, 253 Cal. Rptr. 530, 532 (Ct. App. 1988) (patient in persistent vegetative state continues to be treated by attending physician and stays at hospital despite disagreement between her decision-maker and the physician and hospital about terminating life-sustaining treatment). In my experience as an ethics committee member and an ethics consultant, physicians routinely seek an ethics consultation to help resolve EOLT disputes between themselves and their patients or patients' family members before transferring care of the patient to another physician.
32. See infra Part I for a discussion of the centrality of trust in the physician-patient relationship.
33. I use the term "assisted dispute resolution" to mean any form of dispute resolution in which a neutral, third party assists disputing parties to resolve their dispute. I mean for the term to encompass mediation, arbitration and adjudication while excluding direct negotiation between disputing parties (or their representatives) without the assistance of any neutral party. It should not be confused with alternative dispute resolution, which encompasses any dispute resolution mechanism other than adjudication.
34. See infra Part II.A for an explanation of mediation.
35. See Linda C. Fentiman, Privacy and Personhood Revisited: A New Framework for Substitute Decisionmaking for the Incompetent, Incurably Ill Adult, 57 GEO. WASH. L. REV. 801, 840-48 (1989) (using mediation theory as one basis for a model of communication in surrogate EOLT decision-making).
36. See West & Gibson, supra note 9, at 73 (concluding that facilitation and mediation techniques "can be helpful" to medical ethics committees in case review consultations).
37. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
38. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
39. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
40. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
41. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
42. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
43. See, e.g., NANCY NEVELOFF DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 5 (United Hospital Fund of New York, Practical Guide Series, 1994) (finding that mediation can yield creative solutions tailored to the needs of the parties, that the parties are more satisfied with the resolution and have a greater commitment to its implementation and that the parties may develop a greater capacity to resolve future disputes without intervention); LEONARD J. MARCUS ET AL., RENEGOTIATING HEALTH CARE: RESOLVING CONFLICT TO BUILD COLLABORATION 327, 361 (1995) (stating that mediation is flexible and can be adapted to the needs of bioethical disputes); Karen A. Butler, Harvesters: Alternatives to Judicial Intervention in Medical Treatment Decisions, 1996 J. DISP. RESOL. 191, 208 and 212 (1996) (endorsing a mediation-arbitration hybrid and the use of the Bioethics Review Committee proposed by the New York Task Force on Life and the Law as a mediation body); James W. Reeves, ADR Relieves Pain of Health Care Disputes, 49 DISP. RESOL J. 14 (Sept. 1994) (reporting on a planned pilot project in St. Louis, which emphasizes mediation over arbitration and litigation); Lynne Sims-Taylor, Reasoned Compassion in a More Humane Forum: A Proposal to Use ADR to Resolve Medical Treatment Decisions, 9 OHIO ST. J. ON DISP. RESOL. 333, 336 and 363-370 (1994) (proposing a system of mandatory mediation and non-binding arbitration prior to adjudication); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L. J. 703, 754 (1997) (depicting an EOLT dispute as a paradigm case for the application of a kind of mediation in which the mediator actively advocates for important public values that act as a boundary for any agreement reached by the parties); Erica Wood & Naomi Karp, "Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities, 29 CLEARINGHOUSE REV. 621, 626 (1995) (listing mediation as one method of dispute resolution for long-term care disputes).
44. See, e.g., Butler, supra note 25, at 206 (explaining the advantages that alternate dispute resolution, including mediation, has over judicial intervention).
45. See, e.g., Brad Burg, Isn't There Something Better than Suing? There Is! MED. ECON., July 6, 1992, at 164-71 (providing brief summary of benefits while advocating mediation in a wide range of health-centered disputes).
46. See Hoffmann, supra note 6, at 858-73 (examining the appropriateness of mediation for EOLT dispute resolution based on specified criteria and concluding that mediation is not well suited for the resolution of many EOLT disputes).
47. See id. at 865 (stating that the physician is likely to have more resources, technical expertise and control over care than the patient and the patient's family).
48. See id at 866 ("Perhaps the most problematic aspect of the application of mediation is that there may be no one officially representing the interests of the parties.").
49. See id at 872 ("In a mediation process, disputants may reject established norms and develop their own . . . Alternatively, they may not develop any norms at all.").
50. See id at 863 ("[A]ny party [who] views the dispute as one in which there is a definite right or wrong answer... may view compromise as an admission of 'normative weakness' . . . .").
51. See id at 826. Despite her conclusion with respect to disputes between health care providers and patients or patient's surrogate decision-makers, Professor Hoffmann agrees that mediation might be an appropriate mechanism for resolving EOLT disputes among family members. See id.
52. See, e.g., Wood & Karp, supra note 25, at 627 (citing the unwillingness of parties to participate and power imbalances as reasons why mediation may not be an ideal means by which to resolve disputes).
53. See DUBLER & MARCUS, supra note 25, at ix (reporting on Montefiore Medical Center's project to develop a mediation program for the hospital staff); West & Gibson, supra note 9, at 63 (reporting on the National Institute for Dispute Resolution planning grant from its Innovation Fund to the Institute for Public Law at the University of New Mexico School of Law to study what ethics committees can learn from facilitation and mediation techniques); Wood & Karp, supra note 25, at 627 (describing how the American Bar Association Commission on Legal Problems of the Elderly, with the support of the American Association of Retired Persons Andrus Foundation and the Commonwealth Fund, launched a pilot program in 1994 for resolving long-term care disputes in 25 nursing homes in the District of Columbia, Maryland and Northern Virginia).
54. See DUBLER & MARCUS, supra note 25, at ix (reporting on Montefiore Medical Center's project to develop a mediation program for the hospital staff); West & Gibson, supra note 9, at 63 (reporting on the National Institute for Dispute Resolution planning grant from its Innovation Fund to the Institute for Public Law at the University of New Mexico School of Law to study what ethics committees can learn from facilitation and mediation techniques); Wood & Karp, supra note 25, at 627 (describing how the American Bar Association Commission on Legal Problems of the Elderly, with the support of the American Association of Retired Persons Andrus Foundation and the Commonwealth Fund, launched a pilot program in 1994 for resolving long-term care disputes in 25 nursing homes in the District of Columbia, Maryland and Northern Virginia).
55. See DUBLER & MARCUS, supra note 25, at ix (reporting on Montefiore Medical Center's project to develop a mediation program for the hospital staff); West & Gibson, supra note 9, at 63 (reporting on the National Institute for Dispute Resolution planning grant from its Innovation Fund to the Institute for Public Law at the University of New Mexico School of Law to study what ethics committees can learn from facilitation and mediation techniques); Wood & Karp, supra note 25, at 627 (describing how the American Bar Association Commission on Legal Problems of the Elderly, with the support of the American Association of Retired Persons Andrus Foundation and the Commonwealth Fund, launched a pilot program in 1994 for resolving long-term care disputes in 25 nursing homes in the District of Columbia, Maryland and Northern Virginia).
56. See DUBLER & MARCUS, supra note 25, at 33 (describing mediation model based on analysis of actual cases from Montefiore Medical Center's program to develop a mediation program for the staff); West & Gibson, supra note 9, at 73; Wood & Karp, supra note 25, at 626 ("Several landmark projects demonstrate mediation as a means of empowering patients, families, and staff members to resolve difficult decisions."). In contrast, the Colorado Collective for Health Care Decisions reports that its program for mediating disputes about the appropriateness of EOLTs was discontinued for lack of referrals. Telephone interview with Susan Fox Buchanan, Executive Director, Colorado Collective for Health Care Decisions (Oct. 1999). See also Colorado Collective for Healthcare Decisions, draft article concerning its end-of-life care mediation project (unpublished manuscript on file with Boston University Law Review).
57. See DUBLER & MARCUS, supra note 25, at 33 (describing mediation model based on analysis of actual cases from Montefiore Medical Center's program to develop a mediation program for the staff); West & Gibson, supra note 9, at 73; Wood & Karp, supra note 25, at 626 ("Several landmark projects demonstrate mediation as a means of empowering patients, families, and staff members to resolve difficult decisions."). In contrast, the Colorado Collective for Health Care Decisions reports that its program for mediating disputes about the appropriateness of EOLTs was discontinued for lack of referrals. Telephone interview with Susan Fox Buchanan, Executive Director, Colorado Collective for Health Care Decisions (Oct. 1999). See also Colorado Collective for Healthcare Decisions, draft article concerning its end-of-life care mediation project (unpublished manuscript on file with Boston University Law Review).
58. See DUBLER & MARCUS, supra note 25, at 33 (describing mediation model based on analysis of actual cases from Montefiore Medical Center's program to develop a mediation program for the staff); West & Gibson, supra note 9, at 73; Wood & Karp, supra note 25, at 626 ("Several landmark projects demonstrate mediation as a means of empowering patients, families, and staff members to resolve difficult decisions."). In contrast, the Colorado Collective for Health Care Decisions reports that its program for mediating disputes about the appropriateness of EOLTs was discontinued for lack of referrals. Telephone interview with Susan Fox Buchanan, Executive Director, Colorado Collective for Health Care Decisions (Oct. 1999). See also Colorado Collective for Healthcare Decisions, draft article concerning its end-of-life care mediation project (unpublished manuscript on file with Boston University Law Review).
59. See DUBLER & MARCUS, supra note 25, at 33 (describing mediation model based on analysis of actual cases from Montefiore Medical Center's program to develop a mediation program for the staff); West & Gibson, supra note 9, at 73; Wood & Karp, supra note 25, at 626 ("Several landmark projects demonstrate mediation as a means of empowering patients, families, and staff members to resolve difficult decisions."). In contrast, the Colorado Collective for Health Care Decisions reports that its program for mediating disputes about the appropriateness of EOLTs was discontinued for lack of referrals. Telephone interview with Susan Fox Buchanan, Executive Director, Colorado Collective for Health Care Decisions (Oct. 1999). See also Colorado Collective for Healthcare Decisions, draft article concerning its end-of-life care mediation project (unpublished manuscript on file with Boston University Law Review).
60. See supra note 19.
61. See Hoffmann, supra note 6, at 865-66 (arguing that the physician is advantaged in education, training, and power within the medical institution, leaving the patient or patient's family at a distinct disadvantage in mediation).
62. Eric Cassell writes: I remember a patient, lying undressed on the examining table, who said quizzically, "Why am I letting you touch me?" It is a very reasonable question. She was a patient new to me, a stranger, and fifteen minutes after our meeting, I was poking at her breasts! Similarly I have access to the homes and darkest secrets of people who are virtual strangers. In other words, the usual boundaries of a person, both physical and emotional, are crossed with impunity by physicians. 1 ERIC J. CASSELL, TALKING WITH PATIENTS 119 (1985). See also RICHARD M. ZANER, TROUBLED VOICES: STORIES OF ETHICS AND ILLNESS 8-10 (1993) (considering the passage above and concluding that what makes the physician-patient relationship workable is trust by patients in the physician's skills, knowledge, integrity, and "even in them as persons"). See generally ANNETTE C. BAIER, Trust and Antitrust, in MORAL PREJUDICES: ESSAYS ON ETHICS 95, 95-129 (1994) (giving a philosophical assessment of trust). Some may argue that patients do not necessarily trust physicians when they choose to be treated by a physician. Because a person in need of medical treatment has few, if any, options other than to be treated by a physician, patients may be forced to "rely" on physicians even if they do not trust physicians. But reliance on another out of need is consistent with trusting another. Trust can include circumstances in which we rely on others because we have no other choice but to do so. Philosopher Annette C. Baier defines trust as "letting other persons . . . take care of something the truster cares about, where such 'caring for' involves some exercise of discretionary powers." See BAIER, supra at 105. She includes among circumstances of trust, instances in which we trust out of the necessity to do so. "Since the things we typically . . . value include things that we cannot singlehandedly either create or sustain (our own life, health . . . ), we must allow many other people to get into positions where they can, if they choose, injure what we care about . . . ." Id. at 100-01 (emphasis added).
63. Eric Cassell writes: I remember a patient, lying undressed on the examining table, who said quizzically, "Why am I letting you touch me?" It is a very reasonable question. She was a patient new to me, a stranger, and fifteen minutes after our meeting, I was poking at her breasts! Similarly I have access to the homes and darkest secrets of people who are virtual strangers. In other words, the usual boundaries of a person, both physical and emotional, are crossed with impunity by physicians. 1 ERIC J. CASSELL, TALKING WITH PATIENTS 119 (1985). See also RICHARD M. ZANER, TROUBLED VOICES: STORIES OF ETHICS AND ILLNESS 8-10 (1993) (considering the passage above and concluding that what makes the physician-patient relationship workable is trust by patients in the physician's skills, knowledge, integrity, and "even in them as persons"). See generally ANNETTE C. BAIER, Trust and Antitrust, in MORAL PREJUDICES: ESSAYS ON ETHICS 95, 95-129 (1994) (giving a philosophical assessment of trust). Some may argue that patients do not necessarily trust physicians when they choose to be treated by a physician. Because a person in need of medical treatment has few, if any, options other than to be treated by a physician, patients may be forced to "rely" on physicians even if they do not trust physicians. But reliance on another out of need is consistent with trusting another. Trust can include circumstances in which we rely on others because we have no other choice but to do so. Philosopher Annette C. Baier defines trust as "letting other persons . . . take care of something the truster cares about, where such 'caring for' involves some exercise of discretionary powers." See BAIER, supra at 105. She includes among circumstances of trust, instances in which we trust out of the necessity to do so. "Since the things we typically . . . value include things that we cannot singlehandedly either create or sustain (our own life, health . . . ), we must allow many other people to get into positions where they can, if they choose, injure what we care about . . . ." Id. at 100-01 (emphasis added).
64. Eric Cassell writes: I remember a patient, lying undressed on the examining table, who said quizzically, "Why am I letting you touch me?" It is a very reasonable question. She was a patient new to me, a stranger, and fifteen minutes after our meeting, I was poking at her breasts! Similarly I have access to the homes and darkest secrets of people who are virtual strangers. In other words, the usual boundaries of a person, both physical and emotional, are crossed with impunity by physicians. 1 ERIC J. CASSELL, TALKING WITH PATIENTS 119 (1985). See also RICHARD M. ZANER, TROUBLED VOICES: STORIES OF ETHICS AND ILLNESS 8-10 (1993) (considering the passage above and concluding that what makes the physician-patient relationship workable is trust by patients in the physician's skills, knowledge, integrity, and "even in them as persons"). See generally ANNETTE C. BAIER, Trust and
65. Eric Cassell writes: I remember a patient, lying undressed on the examining table, who said quizzically, "Why am I letting you touch me?" It is a very reasonable question. She was a patient new to me, a stranger, and fifteen minutes after our meeting, I was poking at her breasts! Similarly I have access to the homes and darkest secrets of people who are virtual strangers. In other words, the usual boundaries of a person, both physical and emotional, are crossed with impunity by physicians. 1 ERIC J. CASSELL, TALKING WITH PATIENTS 119 (1985). See also RICHARD M. ZANER, TROUBLED VOICES: STORIES OF ETHICS AND ILLNESS 8-10 (1993) (considering the passage above and concluding that what makes the physician-patient relationship workable is trust by patients in the physician's skills, knowledge, integrity, and "even in them as persons"). See generally ANNETTE C. BAIER, Trust and Antitrust, in MORAL PREJUDICES: ESSAYS ON ETHICS 95, 95-129 (1994) (giving a philosophical assessment of trust). Some may argue that patients do not necessarily trust physicians when they choose to be treated by a physician. Because a person in need of medical treatment has few, if any, options other than to be treated by a physician, patients may be forced to "rely" on physicians even if they do not trust physicians. But reliance on another out of need is consistent with trusting another. Trust can include circumstances in which we rely on others because we have no other choice but to do so. Philosopher Annette C. Baier defines trust as "letting other persons . . . take care of something the truster cares about, where such 'caring for' involves some exercise of discretionary powers." See BAIER, supra at 105. She includes among circumstances of trust, instances in which we trust out of the necessity to do so. "Since the things we typically . . . value include things that we cannot singlehandedly either create or sustain (our own life, health . . . ), we must allow many other people to get into positions where they can, if they choose, injure what we care about . . . ." Id. at 100-01 (emphasis added).
66. Eric Cassell writes: I remember a patient, lying undressed on the examining table, who said quizzically, "Why am I letting you touch me?" It is a very reasonable question. She was a patient new to me, a stranger, and fifteen minutes after our meeting, I was poking at her breasts! Similarly I have access to the homes and darkest secrets of people who are virtual strangers. In other words, the usual boundaries of a person, both physical and emotional, are crossed with impunity by physicians. 1 ERIC J. CASSELL, TALKING WITH PATIENTS 119 (1985). See also RICHARD M. ZANER, TROUBLED VOICES: STORIES OF ETHICS AND ILLNESS 8-10 (1993) (considering the passage above and concluding that what makes the physician-patient relationship workable is trust by patients in the physician's skills, knowledge, integrity, and "even in them as persons"). See generally ANNETTE C. BAIER, Trust and Antitrust, in MORAL PREJUDICES: ESSAYS ON ETHICS 95, 95-129 (1994) (giving a philosophical assessment of trust). Some may argue that patients do not necessarily trust physicians when they choose to be treated by a physician. Because a person in need of medical treatment has few, if any, options other than to be treated by a physician, patients may be forced to "rely" on physicians even if they do not trust physicians. But reliance on another out of need is consistent with trusting another. Trust can include circumstances in which we rely on others because we have no other choice but to do so. Philosopher Annette C. Baier defines trust as "letting other persons . . . take care of something the truster cares about, where such 'caring for' involves some exercise of discretionary powers." See BAIER, supra at 105. She includes among circumstances of trust, instances in which we trust out of the necessity to do so. "Since the things we typically . . . value include things that we cannot singlehandedly either create or sustain (our own life, health . . . ), we must allow many other people to get into positions where they can, if they choose, injure what we care about . . . ." Id. at 100-01 (emphasis added).
67. See David Mechanic, The Functions and Limitations of Trust in the Provision of Medical Care, 23 J. HEALTH POL., POL'Y & L. 661, 663-64 (1998) (defining the dimensions of trust in the physician-patient context).
68. See id. at 664 ("[Patients] are reassured by [the] knowledge that medicine is a highly competitive academic endeavor, that entry into medicine is selective and requires talent and perseverance, that training is uniformly careful and rigorous, and that the profession controls entry and licensing through high standards.").
69. See id. at 667 ("The notion of physician agency has an honorable history in medical philosophy and ethics, and the public legitimacy of the medical profession rests substantially on the perception of physicians as dedicated patient advocates.")
70. See id. at 661-63 (arguing that maintenance or restoration of patient trust in physicians and health care institutions is a vital public health issue). See also, MICHAEL H. ANNISON & DAN S. WILFORD, TRUST MATTERS: NEW DIRECTIONS IN HEALTH CARE LEADERSHIP 19 (1998) (highlighting the pervasive necessity of trust in all relationships in the healthcare community, not just between doctors and patients).
71. See id. at 661-63 (arguing that maintenance or restoration of patient trust in physicians and health care institutions is a vital public health issue). See also, MICHAEL H. ANNISON & DAN S. WILFORD, TRUST MATTERS: NEW DIRECTIONS IN HEALTH CARE LEADERSHIP 19 (1998) (highlighting the pervasive necessity of trust in all relationships in the healthcare community, not just between doctors and patients).
72. Many scholars of the physician-patient relationship and of the medical decision-making process argue that the ideal process for medical decision-making is one of collaboration between a physician and patient acting in partnership, or even friendship, in which each respects the moral standing of the other. See e.g., Ezekiel J. Emanuel & Linda L. Emanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221, 2222 (1992) (setting forth a deliberative model of physician-patient interaction where the physician "acts as a teacher or friend engaging the patient in dialogue on what course of action would be best"); JAY KATZ, SILENT WORLD OF DOCTOR AND PATIENT 163-64 (1984) (promoting collaboration between doctor and patient to identify the optimal treatment plan for the patient).
73. See generally PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); RUTH FADEN & TOM BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT (1986); KATZ, supra note 44 for detailed explanation, analysis and critical assessment of the informed consent doctrine.
74. See generally PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); RUTH FADEN & TOM BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT (1986); KATZ, supra note 44 for detailed explanation, analysis and critical assessment of the informed consent doctrine.
75. See generally PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (1987); RUTH FADEN & TOM BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT (1986); KATZ, supra note 44 for detailed explanation, analysis and critical assessment of the informed consent doctrine.
76. See Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir. 1972) ("It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of treatment."); FADEN & BEAUCHAMP, supra note 45, at 3 (highlighting the legal duty a physician has to both inform the patient and obtain his or her consent).
77. See Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir. 1972) ("It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of treatment."); FADEN & BEAUCHAMP, supra note 45, at 3 (highlighting the legal duty a physician has to both inform the patient and obtain his or her consent).
78. See Canterbury, 464 F.2d at 780 ("True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each."); FADEN & BEAUCHAMP, supra note 45, at 3 (representing that informed consent includes a duty for physicians to disclose treatment information to patients).
79. See Canterbury, 464 F.2d at 780 ("True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each."); FADEN & BEAUCHAMP, supra note 45, at 3 (representing that informed consent includes a duty for physicians to disclose treatment information to patients).
80. See e.g., Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind.1992) (upholding Indiana's physician-based standard).
81. See e.g., Canterbury, 464 F.2d at 787 (enforcing a patient-centered standard in the District of Columbia).
82. See id. at 781-82 (describing the interest patients have in obtaining all relevant information from their doctors so that they can make informed decisions); Susan K. Gauvey, et al., Informed and Substitute Consent to Health Care Procedures: A Proposal for State Legislation, 15 HARV. J. ON LEGIS. 431, 439 (1978) ("[I]nformed consent requires an exchange of information between the physician and patient which culminates in a decision made by the patient based on this information."); Cathy J. Jones, Autonomy and Informed Consent in Medical Decision-Making: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 385-86 (1990) (explaining that informed consent "requires that physicians disclose to patients certain information concerning the patients' condition, proposed diagnostic or treatment alternatives, and the risks and benefits associated with those alternatives."); Robert Gatter, The Forgotten Duty in Informed Consent Law: A Physician's Obligation to Inquire About Patients' Subjective Treatment Goals, 31 LOY. U. CHI. L.J. _ (forthcoming 2000) (arguing that informed consent law requires physicians to make a reasonable effort to determine each patient's treatment goals) (manuscript on file with Boston University Law Review).
83. See id. at 781-82 (describing the interest patients have in obtaining all relevant information from their doctors so that they can make informed decisions); Susan K. Gauvey, et al., Informed and Substitute Consent to Health Care Procedures: A Proposal for State Legislation, 15 HARV. J. ON LEGIS. 431, 439 (1978) ("[I]nformed consent requires an exchange of information between the physician and patient which culminates in a decision made by the patient based on this information."); Cathy J. Jones, Autonomy and Informed Consent in Medical Decision-Making: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 385-86 (1990) (explaining that informed consent "requires that physicians disclose to patients certain information concerning the patients' condition, proposed diagnostic or treatment alternatives, and the risks and benefits associated with those alternatives."); Robert Gatter, The Forgotten Duty in Informed Consent Law: A Physician's Obligation to Inquire About Patients' Subjective Treatment Goals, 31 LOY. U. CHI. L.J. _ (forthcoming 2000) (arguing that informed consent law requires physicians to make a reasonable effort to determine each patient's treatment goals) (manuscript on file with Boston University Law Review).
84. See id. at 781-82 (describing the interest patients have in obtaining all relevant information from their doctors so that they can make informed decisions); Susan K. Gauvey, et al., Informed and Substitute Consent to Health Care Procedures: A Proposal for State Legislation, 15 HARV. J. ON LEGIS. 431, 439 (1978) ("[I]nformed consent requires an exchange of information between the physician and patient which culminates in a decision made by the patient based on this information."); Cathy J. Jones, Autonomy and Informed Consent in Medical Decision-Making: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 385-86 (1990) (explaining that informed consent "requires that physicians disclose to patients certain information concerning the patients' condition, proposed diagnostic or treatment alternatives, and the risks and benefits associated with those alternatives."); Robert Gatter, The Forgotten Duty in Informed Consent Law: A Physician's Obligation to Inquire About Patients' Subjective Treatment Goals, 31 LOY. U. CHI. L.J. _ (forthcoming 2000) (arguing that informed consent law requires physicians to make a reasonable effort to determine each patient's treatment goals) (manuscript on file with Boston University Law Review).
85. See id. at 781-82 (describing the interest patients have in obtaining all relevant information from their doctors so that they can make informed decisions); Susan K. Gauvey, et al., Informed and Substitute Consent to Health Care Procedures: A Proposal for State Legislation, 15 HARV. J. ON LEGIS. 431, 439 (1978) ("[I]nformed consent requires an exchange of information between the physician and patient which culminates in a decision made by the patient based on this information."); Cathy J. Jones, Autonomy and Informed Consent in Medical Decision-Making: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379, 385-86 (1990) (explaining that informed consent "requires that physicians disclose to patients certain information concerning the patients' condition, proposed diagnostic or treatment alternatives, and the risks and benefits associated with those alternatives."); Robert Gatter, The Forgotten Duty in Informed Consent Law: A Physician's Obligation to Inquire About Patients' Subjective Treatment Goals, 31 LOY. U. CHI. L.J. _ (forthcoming 2000) (arguing that informed consent law requires physicians to make a reasonable effort to determine each patient's treatment goals) (manuscript on file with Boston University Law Review).
86. See e.g., Ben A. Rich, The Values History: A New Standard Of Care, 40 EMORY L.J. 1109, 1129 (1991) (discussing the case of Dax Cowart, a young man kept alive in a state of severe pain despite his requests to the contrary after suffering third degree burns in an explosion).
87. See David Orentlicher, Limits of Legislation, 53 MD. L. REV. 1255, 1263 (1994) ("Ordinarily, when the patient has not left an advance directive, family members are relied upon to make decisions for the patient. Indeed, physicians have historically turned to family members for medical decisions when patients are mentally incompetent, and courts generally have recognized the authority of families to make life-sustaining treatment decisions for incompetent patients.").
88. See id. at 1278 (outlining empirical studies of family decision-making showing that patients' family members cannot predict the preferences of patients to any degree of statistical significance).
89. See, e.g., TOM L. BEAUCHAMP & JAMES CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 142 (4th ed. 1994) (accepting "the premise that the primary function and justification of informed consent is to enable and protect individual autonomous choice");
90. FADEN & BEAUCHAMP, supra note 45, at 235-97 (providing a theoretical model for informed consent based upon the principle of respect for autonomy);
91. KATZ, supra note 44, at xiii-xxi (introducing and summarizing the thesis that a history of medical paternalism has hindered patient self-determination in medical decision-making and that a thorough-going respect for informed consent is necessary to reverse that history);
92. H. TRISTRAM ENGLEHARDT, THE FOUNDATION OF BIOETHICS 121-28 (2d ed. 1995) (claiming that the principles of permission and beneficence are the principles of bioethics and that the principle of permission presumptively trumps the principle of beneficence when they conflict).
93. See William F. May, A Basis for Professional Ethics: Code, Covenant, Contract, or Philanthropy, 5 HASTINGS CENTER REPORT 29 (Dec. 1975) (describing various moral conceptions of the physician-patient relationship).
94. See, e.g., Emanuel & Emanuel, supra note 44, at 2222 (advancing a physician-patient relationship model based on collaborative discussion).
95. See e.g., Robert M. Veatch, Models for Ethical Medicine in a Revolutionary Age: What Physician-Patient Roles Foster the Most Ethical Relationship?, 2 HASTINGS CENTER REPORT 5 (June 1972) (expounding a general, not legal, conception of contract between patient and physician under which both parties gain a mutual understanding of the other party's rights and responsibilities).
96. See e.g., May, supra note 55, at 29 (noting that the covenant model includes contractual elements but also involves a heightened social responsibility on the part of physicians as a result of the societal support they have received throughout their training).
97. See e.g., EDMUND D. PELLIGRINO & DAVID C. THOMASMA, FOR THE PATIENT'S GOOD 54-58 (1988) [hereinafter PELLIGRINO & THOMASMA, PATIENT'S GOOD] (arguing that beneficence is the primary ethical principle in medicine); EDMUND D. PELLIGRINO & DAVID C. THOMASMA, THE VIRTUES IN MEDICAL PRACTICE 37-48 (1993) (emphasizing the role of physicians under a social contract to act according to their patients' best interests and to the exclusion of their own self-interest).
98. See e.g., EDMUND D. PELLIGRINO & DAVID C. THOMASMA, FOR THE PATIENT'S GOOD 54-58 (1988) [hereinafter PELLIGRINO & THOMASMA, PATIENT'S GOOD] (arguing that beneficence is the primary ethical principle in medicine); EDMUND D. PELLIGRINO & DAVID C. THOMASMA, THE VIRTUES IN MEDICAL PRACTICE 37-48 (1993) (emphasizing the role of physicians under a social contract to act according to their patients' best interests and to the exclusion of their own self-interest).
99. See RUTH B. PURTILLO, Professional-Patient Relationships: Ethical Issues, in 4 ENCYCLOPEDIA OF BIOETHICS 2094, 2099 (Warren T. Reich ed., 2d ed. 1995) ("Only when the professional is truly trustworthy can the patient's security and, importantly, freedom to act flourish within the complex intermingling of dependence and independence that characterizes today's [physician-patient] relationship."). See also PELLIGRINO & THOMASMA, PATIENT'S GOOD, supra note 59, at 109-10 (concluding that the patient must have confidence in the physician for treatment to be carried out effectively); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS 8 (1977) (suggesting that covenant and contract models are based in trust); Emanuel & Emanuel, supra note 44, at 2225-26 (emphasizing the necessity of effective communication between physician and patient so that the patient understands and has faith in the determinations of the physician).
100. See RUTH B. PURTILLO, Professional-Patient Relationships: Ethical Issues, in 4 ENCYCLOPEDIA OF BIOETHICS 2094, 2099 (Warren T. Reich ed., 2d ed. 1995) ("Only when the professional is truly trustworthy can the patient's security and, importantly, freedom to act flourish within the complex intermingling of dependence and independence that characterizes today's [physician-patient] relationship."). See also PELLIGRINO & THOMASMA, PATIENT'S GOOD, supra note 59, at 109-10 (concluding that the patient must have confidence in the physician for treatment to be carried out effectively); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS 8 (1977) (suggesting that covenant and contract models are based in trust); Emanuel & Emanuel, supra note 44, at 2225-26 (emphasizing the necessity of effective communication between physician and patient so that the patient understands and has faith in the determinations of the physician).
101. See RUTH B. PURTILLO, Professional-Patient Relationships: Ethical Issues, in 4 ENCYCLOPEDIA OF BIOETHICS 2094, 2099 (Warren T. Reich ed., 2d ed. 1995) ("Only when the professional is truly trustworthy can the patient's security and, importantly, freedom to act flourish within the complex intermingling of dependence and independence that characterizes today's [physician-patient] relationship."). See also PELLIGRINO & THOMASMA, PATIENT'S GOOD, supra note 59, at 109-10 (concluding that the patient must have confidence in the physician for treatment to be carried out effectively); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS 8 (1977) (suggesting that covenant and contract models are based in trust); Emanuel & Emanuel, supra note 44, at 2225-26 (emphasizing the necessity of effective communication between physician and patient so that the patient understands and has faith in the determinations of the physician).
102. See RUTH B. PURTILLO, Professional-Patient Relationships: Ethical Issues, in 4 ENCYCLOPEDIA OF BIOETHICS 2094, 2099 (Warren T. Reich ed., 2d ed. 1995) ("Only when the professional is truly trustworthy can the patient's security and, importantly, freedom to act flourish within the complex intermingling of dependence and independence that characterizes today's [physician-patient] relationship."). See also PELLIGRINO & THOMASMA, PATIENT'S GOOD, supra note 59, at 109-10 (concluding that the patient must have confidence in the physician for treatment to be carried out effectively); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS 8 (1977) (suggesting that covenant and contract models are based in trust); Emanuel & Emanuel, supra note 44, at 2225-26 (emphasizing the necessity of effective communication between physician and patient so that the patient understands and has faith in the determinations of the physician).
103. Lockett v. Goodill, 430 P.2d 589, 591 (Wash. 1967). See also Canterbury, 464 F.2d at 782 (commenting on the fiduciary nature of the physician-patient relationship that requires the physician to disclose all relevant information to the patient); Moore v. Regents of the University of California, 271 Cal Rptr. 146, 150 (1990) ("[I]n soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision."). See generally Gregory D. Jones, Note, Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute and the Physician-Patient Fiduciary Relationship, 51 VAND. L. REV. 139, 155-60 (1998) (giving an overview of the physician-patient relationship as a fiduciary relationship).
104. Lockett v. Goodill, 430 P.2d 589, 591 (Wash. 1967). See also Canterbury, 464 F.2d at 782 (commenting on the fiduciary nature of the physician-patient relationship that requires the physician to disclose all relevant information to the patient); Moore v. Regents of the University of California, 271 Cal Rptr. 146, 150 (1990) ("[I]n soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision."). See generally Gregory D. Jones, Note, Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute and the Physician-Patient Fiduciary Relationship, 51 VAND. L. REV. 139, 155-60 (1998) (giving an overview of the physician-patient relationship as a fiduciary relationship).
105. Lockett v. Goodill, 430 P.2d 589, 591 (Wash. 1967). See also Canterbury, 464 F.2d at 782 (commenting on the fiduciary nature of the physician-patient relationship that requires the physician to disclose all relevant information to the patient); Moore v. Regents of the University of California, 271 Cal Rptr. 146, 150 (1990) ("[I]n soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision."). See generally Gregory D. Jones, Note, Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute and the Physician-Patient Fiduciary Relationship, 51 VAND. L. REV. 139, 155-60 (1998) (giving an overview of the physician-patient relationship as a fiduciary relationship).
106. Lockett v. Goodill, 430 P.2d 589, 591 (Wash. 1967). See also Canterbury, 464 F.2d at 782 (commenting on the fiduciary nature of the physician-patient relationship that requires the physician to disclose all relevant information to the patient); Moore v. Regents of the University of California, 271 Cal Rptr. 146, 150 (1990) ("[I]n soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision."). See generally Gregory D. Jones, Note, Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute and the Physician-Patient Fiduciary Relationship, 51 VAND. L. REV. 139, 155-60 (1998) (giving an overview of the physician-patient relationship as a fiduciary relationship).
107. See BAIER, supra note 39, at 103-05 ("The special vulnerability which trust involves is vulnerability to not yet noticed harm, or to disguised ill will.").
108. See Majorie Maguire Shultz, From Informed Consent to Patient Choice, 95 YALE L.J. 219, 251-53 (1985) (identifying dignitary harms to patients deprived of an opportunity to choose their treatments; these harms are not compensated under informed consent law).
109. See BAIER, supra note 39, at 111 ("Social artifices such as property, which allocate rights and duties . . . create a climate of trust, a presumption of a sort of trustworthiness."). See also supra text accompanying notes 44-50 (regarding the need for trust even assuming that medical treatment decisions are made only on the basis of the limited legal duties established by informed consent).
110. See infra Part IV.B. for arguments in favor of a law requiring health care institutions to offer mediation to all patients or their decision-makers involved in EOLT disputes with their physicians.
111. See Mechanic, supra note 40, at 665 ("The product of medical care is in part the process of doctoring, and how physicians maintain the relationship and manage problems.").
112. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 103 (2d ed. 1992) ("Mediation is negotiation carried out with the assistance of a third party."); JAY E. GRENIG, ALTERNATIVE DISPUTE RESOLUTION WITH FORMS 116 (2d ed. 1990) (mediation "is, in effect, an extension of the negotiation process"); CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 15 (2d ed. 1996) (defining mediation as "the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute").
113. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 103 (2d ed. 1992) ("Mediation is negotiation carried out with the assistance of a third party."); JAY E. GRENIG, ALTERNATIVE DISPUTE RESOLUTION WITH FORMS 116 (2d ed. 1990) (mediation "is, in effect, an extension of the negotiation process"); CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 15 (2d ed. 1996) (defining mediation as "the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute").
114. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 103 (2d ed. 1992) ("Mediation is negotiation carried out with the assistance of a third party."); JAY E. GRENIG, ALTERNATIVE DISPUTE RESOLUTION WITH FORMS 116 (2d ed. 1990) (mediation "is, in effect, an extension of the negotiation process"); CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 15 (2d ed. 1996) (defining mediation as "the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute").
115. See GRENIG, supra note 67, at 116-17 (defining the role of a mediator); MOORE, supra note 67 at 15; Patrick Mead & Ed Newcomer, Jr., Alternative Dispute Resolution (ADR) Glossary of Terms, WASHINGTON STATE BAR NEWS 25, 26 (April 1993) (referring to the non-binding, facilitation role played by the mediator).
116. See GRENIG, supra note 67, at 116-17 (defining the role of a mediator); MOORE, supra note 67 at 15; Patrick Mead & Ed Newcomer, Jr., Alternative Dispute Resolution (ADR) Glossary of Terms, WASHINGTON STATE BAR NEWS 25, 26 (April 1993) (referring to the non-binding, facilitation role played by the mediator).
117. See GRENIG, supra note 67, at 116-17 (defining the role of a mediator); MOORE, supra note 67 at 15; Patrick Mead & Ed Newcomer, Jr., Alternative Dispute Resolution (ADR) Glossary of Terms, WASHINGTON STATE BAR NEWS 25, 26 (April 1993) (referring to the non-binding, facilitation role played by the mediator).
118. See MOORE, supra note 67, at 18-19 (listing "process facilitator" among the various roles that a mediator might play in addition to "opener of communication channels," "legitimizer," "trainer," "resource expander," "problem explorer," "agent of reality," "scapegoat," and "leader").
119. See KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 84 (1994) (recommending that mediators obtain "an affirmative commitment from the parties to listen to each other" and otherwise cooperate in the search for settlement options at the start of a mediation); MOORE, supra note 67, at 157, 198-99, 201; N. ROGERS & R. SALEM, A Student's Guide to 'Mediation and the Law, in DISPUTE RESOLUTION: NEGOTIATION, MEDIATION AND OTHER PROCESSES 107 (Stephen B. Goldberg et al., eds., 1992) (emphasizing the variety of dispute resolution tools available to the mediator).
120. See KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 84 (1994) (recommending that mediators obtain "an affirmative commitment from the parties to listen to each other" and otherwise cooperate in the search for settlement options at the start of a mediation); MOORE, supra note 67, at 157, 198-99, 201; N. ROGERS & R. SALEM, A Student's Guide to 'Mediation and the Law, in DISPUTE RESOLUTION: NEGOTIATION, MEDIATION AND OTHER PROCESSES 107 (Stephen B. Goldberg et al., eds., 1992) (emphasizing the variety of dispute resolution tools available to the mediator).
121. See KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 84 (1994) (recommending that mediators obtain "an affirmative commitment from the parties to listen to each other" and otherwise cooperate in the search for settlement options at the start of a mediation); MOORE, supra note 67, at 157, 198-99, 201; N. ROGERS & R. SALEM, A Student's Guide to 'Mediation and the Law, in DISPUTE RESOLUTION: NEGOTIATION, MEDIATION AND OTHER PROCESSES 107 (Stephen B. Goldberg et al., eds., 1992) (emphasizing the variety of dispute resolution tools available to the mediator).
122. See MOORE, supra note 67, at 157.
123. See MOORE, supra note 67, at 319-26 (outlining situations that necessitate caucusing and the procedure that should be followed); Lisa G. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN'S L.J. 57, 103-04 (1984) (recommending that mediations between the perpetrator and victim of spousal abuse begin with separate meetings between the mediator and each party); Thomas B. Metzloff et al., Empirical Perspectives on Mediation and Malpractice, 60 LAW & CONTEMP. PROBS. 107, 120-21 (Winter 1997) (citing evidence that suggests mediators in medical malpractice cases routinely met separately with parties).
124. See MOORE, supra note 67, at 319-26 (outlining situations that necessitate caucusing and the procedure that should be followed); Lisa G. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN'S L.J. 57, 103-04 (1984) (recommending that mediations between the perpetrator and victim of spousal abuse begin with separate meetings between the mediator and each party); Thomas B. Metzloff et al., Empirical Perspectives on Mediation and Malpractice, 60 LAW & CONTEMP. PROBS. 107, 120-21 (Winter 1997) (citing evidence that suggests mediators in medical malpractice cases routinely met separately with parties).
125. See MOORE, supra note 67, at 319-26 (outlining situations that necessitate caucusing and the procedure that should be followed); Lisa G. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN'S L.J. 57, 103-04 (1984) (recommending that mediations between the perpetrator and victim of spousal abuse begin with separate meetings between the mediator and each party); Thomas B. Metzloff et al., Empirical Perspectives on Mediation and Malpractice, 60 LAW & CONTEMP. PROBS. 107, 120-21 (Winter 1997) (citing evidence that suggests mediators in medical malpractice cases routinely met separately with parties).
126. See MOORE, supra note 67, at 319-20 (listing purposes for initiating caucuses).
127. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 97 (1991) (coining the term "BATNA" for the "Best Alternative To a Negotiated Agreement"); Kovach, supra note 70, at 128-29 (encouraging the discovery and use of each party's BATNA and WATNA as a means to overcome an impasse); MOORE, supra note 67, at 277-78, 330-31 (discussing how mediators may query parties about their best and worst alternatives to a negotiated agreement); Metzloff et al., supra note 72, at 121-23 (presenting data confirming that mediators play on the doubts of parties about their chances of succeeding in court to facilitate a move toward resolution of the conflict).
128. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 97 (1991) (coining the term "BATNA" for the "Best Alternative To a Negotiated Agreement"); Kovach, supra note 70, at 128-29 (encouraging the discovery and use of each party's BATNA and WATNA as a means to overcome an impasse); MOORE, supra note 67, at 277-78, 330-31 (discussing how mediators may query parties about their best and worst alternatives to a negotiated agreement); Metzloff et al., supra note 72, at 121-23 (presenting data confirming that mediators play on the doubts of parties about their chances of succeeding in court to facilitate a move toward resolution of the conflict).
129. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 97 (1991) (coining the term "BATNA" for the "Best Alternative To a Negotiated Agreement"); Kovach, supra note 70, at 128-29 (encouraging the discovery and use of each party's BATNA and WATNA as a means to overcome an impasse); MOORE, supra note 67, at 277-78, 330-31 (discussing how mediators may query parties about their best and worst alternatives to a negotiated agreement); Metzloff et al., supra note 72, at 121-23 (presenting data confirming that mediators play on the doubts of parties about their chances of succeeding in court to facilitate a move toward resolution of the conflict).
130. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 97 (1991) (coining the term "BATNA" for the "Best Alternative To a Negotiated Agreement"); Kovach, supra note 70, at 128-29 (encouraging the discovery and use of each party's BATNA and WATNA as a means to overcome an impasse); MOORE, supra note 67, at 277-78, 330-31 (discussing how mediators may query parties about their best and worst alternatives to a negotiated agreement); Metzloff et al., supra note 72, at 121-23 (presenting data confirming that mediators play on the doubts of parties about their chances of succeeding in court to facilitate a move toward resolution of the conflict).
131. See GRENIG, supra note 67, at 142 (extolling the virtue of testing reality to compel parties to face the risk of not reaching a voluntary settlement).
132. See MOORE, supra note 67, at 276-77 (urging the mediator to lower a party's expectations and maintain discussion progress).
133. Lon Fuller, Mediation - Its Forms and Functions, 44 S. CAL. L. REV. 305, 325-26, 331 (1971) (identifying disputes between individuals who have a relationship of mutual trust and confidence as disputes for which mediation is appropriate). The claim that mediation is appropriate for all disputes between those in trust relationships presumes that all trust relationships are worth preserving. This presumption ignores that, even in relationships that should be based on trust, trust can be misplaced. This is as true in relationships between patients and health care providers as it is in any purportedly trusting relationship. Thus, the claim that mediation is preferable in disputes involving trust relationships should not be interpreted as a claim that mediation should be mandatory for such disputes. Instead, the party most likely to discover that she or he has misplaced trust should not be bound to mediate disputes with the one in whom trust was misplaced. See infra Part IV.B. for the argument that health care institutions should be required to attempt to mediate physician-patient EOLT disputes at the discretion of the patient or the patient's decision-maker.
134. See Craig A. McEwen & Thomas W. Milburn, Explaining a Paradox of Mediation, 9 NEGOTIATION J. 23, 26-31 (1993) (explaining a process of "dispute selection" and "dispute elaboration" through which grievances escalate and transform into conflict).
135. See infra notes 96-102 and the accompanying text for some empirical support for this claim.
136. See McEwen & Milburn, supra note 78.
137. See id at 26-31; SUSAN L. CARPENTER & W. J. D. KENNEDY, MANAGING PUBLIC DISPUTES 11-17 (1988); MORTON DEUTSCH, THE RESOLUTION OF CONFLICT: CONSTRUCTIVE AND DESTRUCTIVE PROCESSES, 351-53 (1973) (explaining that "destructive conflict" escalates through processes of "competition," "misperception," and "commitment [to one's perspective of the dispute]"); DEAN G. PRUITT & JEFFREY Z. RUBIN, SOCIAL CONFLICT 7, 64-65 (1986) (arguing that "moves and countermoves" of parties "trying to do well at the other's expense" escalates and transforms a conflict); Cris M. Currie, Opinion Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70, 74 (1998) (explaining that disputes escalate because conflict resolution lacks a solid theoretical foundation and therefore cannot establish boundaries or standards for itself).
138. See id at 26-31; SUSAN L. CARPENTER & W. J. D. KENNEDY, MANAGING PUBLIC DISPUTES 11-17 (1988); MORTON DEUTSCH, THE RESOLUTION OF CONFLICT: CONSTRUCTIVE AND DESTRUCTIVE PROCESSES, 351-53 (1973) (explaining that "destructive conflict" escalates through processes of "competition," "misperception," and "commitment [to one's perspective of the dispute]"); DEAN G. PRUITT & JEFFREY Z. RUBIN, SOCIAL CONFLICT 7, 64-65 (1986) (arguing that "moves and countermoves" of parties "trying to do well at the other's expense" escalates and transforms a conflict); Cris M. Currie, Opinion Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70, 74 (1998) (explaining that disputes escalate because conflict resolution lacks a solid theoretical foundation and therefore cannot establish boundaries or standards for itself).
139. See id at 26-31; SUSAN L. CARPENTER & W. J. D. KENNEDY, MANAGING PUBLIC DISPUTES 11-17 (1988); MORTON DEUTSCH, THE RESOLUTION OF CONFLICT: CONSTRUCTIVE AND DESTRUCTIVE PROCESSES, 351-53 (1973) (explaining that "destructive conflict" escalates through processes of "competition," "misperception," and "commitment [to one's perspective of the dispute]"); DEAN G. PRUITT & JEFFREY Z. RUBIN, SOCIAL CONFLICT 7, 64-65 (1986) (arguing that "moves and countermoves" of parties "trying to do well at the other's expense" escalates and transforms a conflict); Cris M. Currie, Opinion Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70, 74 (1998) (explaining that disputes escalate because conflict resolution lacks a solid theoretical foundation and therefore cannot establish boundaries or standards for itself).
140. See id at 26-31; SUSAN L. CARPENTER & W. J. D. KENNEDY, MANAGING PUBLIC DISPUTES 11-17 (1988); MORTON DEUTSCH, THE RESOLUTION OF CONFLICT: CONSTRUCTIVE AND DESTRUCTIVE PROCESSES, 351-53 (1973) (explaining that "destructive conflict" escalates through processes of "competition," "misperception," and "commitment [to one's perspective of the dispute]"); DEAN G. PRUITT & JEFFREY Z. RUBIN, SOCIAL CONFLICT 7, 64-65 (1986) (arguing that "moves and countermoves" of parties "trying to do well at the other's expense" escalates and transforms a conflict); Cris M. Currie, Opinion Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70, 74 (1998) (explaining that disputes escalate because conflict resolution lacks a solid theoretical foundation and therefore cannot establish boundaries or standards for itself).
141. See id at 26-31; SUSAN L. CARPENTER & W. J. D. KENNEDY, MANAGING PUBLIC DISPUTES 11-17 (1988); MORTON DEUTSCH, THE RESOLUTION OF CONFLICT: CONSTRUCTIVE AND DESTRUCTIVE PROCESSES, 351-53 (1973) (explaining that "destructive conflict" escalates through processes of "competition," "misperception," and "commitment [to one's perspective of the dispute]"); DEAN G. PRUITT & JEFFREY Z. RUBIN, SOCIAL CONFLICT 7, 64-65 (1986) (arguing that "moves and countermoves" of parties "trying to do well at the other's expense" escalates and transforms a conflict); Cris M. Currie, Opinion Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70, 74 (1998) (explaining that disputes escalate because conflict resolution lacks a solid theoretical foundation and therefore cannot establish boundaries or standards for itself).
142. See McEwen & Milburn, supra note 78, at 29-30 (stating that disputants' anger and attribution of fault inhibits mutual problem-solving).
143. See id. at 30-31 (arguing that mediation's "power" is its capacity to help deal with the problems created by dispute selection and elaboration by "challenging [the parties'] narrow perceptions of a dispute and assisting the parties in recognizing the context and consequences of their conflict").
144. See id. at 31 (outlining how mediation can establish a "framework for cooperation").
145. See id.
146. See id. at 30-31.
147. See id. at 31.
148. See Robert A. Baruch Bush, "What Do We Need a Mediator For?:" Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1, 13 (1996) (identifying research showing that mediation breaks down strategic barriers to settlements by both providing the parties with more information and giving the parties a more accurate perception of each other).
149. See, e.g., MARCUS ET AL., supra note 25, at 352-60 (describing the effect of a female nurse's opportunity to vent her frustrations to a physician who made a sexual advance while she was administering medication to a patient).
150. See e.g., LaBaron & Carstarphen, Negotiating Intractable Conflict: The Common Ground Dialogue Process and Abortion, 13 NEGOTIATION J. 341 (1997) (describing a project to mediate discussions about abortion between pro-choice and pro-life advocates).
151. See Currie, supra note 81, at 71 (citing Deutsch's theory of "constructive de-escalation" of conflict through cooperative processes that "encourage division of labor in a joint search for truth").
152. See Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press, 1990). Habermas derives communicative ethics from his larger theory of communicative action, which argues, among other things, that members of social groups maintain their unity by communicating with each other for the purpose of arriving at a mutual understanding about their shared worlds. See id. See also, SIMONE CHAMBERS, REASONABLE DEMOCRACY: JÜRGEN HABERMAS AND THE POLITICS OF DISCOURSE 96-97 (1996). For background reading concerning communicative ethics, see generally, THE COMMUNICATIVE ETHICS CONTROVERSY (Seyla Benhabib & Fred Dallmayr eds., 1990); WILLIAM REHG, INSIGHT & SOLIDARITY: THE DISCOURSE ETHICS OF JÜRGEN HABERMAS (1994); and SEYLA BENHABIB, SITUATING THE SELF 1-55 (1992).
153. See Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press, 1990). Habermas derives communicative ethics from his larger theory of communicative action, which argues, among other things, that members of social groups maintain their unity by communicating with each other for the purpose of arriving at a mutual understanding about their shared worlds. See id. See also, SIMONE CHAMBERS, REASONABLE DEMOCRACY: JÜRGEN HABERMAS AND THE POLITICS OF DISCOURSE 96-97 (1996). For background reading concerning communicative ethics, see generally, THE COMMUNICATIVE ETHICS CONTROVERSY (Seyla Benhabib & Fred Dallmayr eds., 1990); WILLIAM REHG, INSIGHT & SOLIDARITY: THE DISCOURSE ETHICS OF JÜRGEN HABERMAS (1994); and SEYLA BENHABIB, SITUATING THE SELF 1-55 (1992).
154. See Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press, 1990). Habermas derives communicative ethics from his larger theory of communicative action, which argues, among other things, that members of social groups maintain their unity by communicating with each other for the purpose of arriving at a mutual understanding about their shared worlds. See id. See also, SIMONE CHAMBERS, REASONABLE DEMOCRACY: JÜRGEN HABERMAS AND THE POLITICS OF DISCOURSE 96-97 (1996). For background reading concerning communicative ethics, see generally, THE COMMUNICATIVE ETHICS CONTROVERSY (Seyla Benhabib & Fred Dallmayr eds., 1990); WILLIAM REHG, INSIGHT & SOLIDARITY: THE DISCOURSE ETHICS OF JÜRGEN HABERMAS (1994); and SEYLA BENHABIB, SITUATING THE SELF 1-55 (1992).
155. See Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press, 1990). Habermas derives communicative ethics from his larger theory of communicative action, which argues, among other things, that members of social groups maintain their unity by communicating with each other for the purpose of arriving at a mutual understanding about their shared worlds. See id. See also, SIMONE CHAMBERS, REASONABLE DEMOCRACY: JÜRGEN HABERMAS AND THE POLITICS OF DISCOURSE 96-97 (1996). For background reading concerning communicative ethics, see generally, THE COMMUNICATIVE ETHICS CONTROVERSY (Seyla Benhabib & Fred Dallmayr eds., 1990); WILLIAM REHG, INSIGHT & SOLIDARITY: THE DISCOURSE ETHICS OF JÜRGEN HABERMAS (1994); and SEYLA BENHABIB, SITUATING THE SELF 1-55 (1992).
156. See Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press, 1990). Habermas derives communicative ethics from his larger theory of communicative action, which argues, among other things, that members of social groups maintain their unity by communicating with each other for the purpose of arriving at a mutual understanding about their shared worlds. See id. See also, SIMONE CHAMBERS, REASONABLE DEMOCRACY: JÜRGEN HABERMAS AND THE POLITICS OF DISCOURSE 96-97 (1996). For background reading concerning communicative ethics, see generally, THE COMMUNICATIVE ETHICS CONTROVERSY (Seyla Benhabib & Fred Dallmayr eds., 1990); WILLIAM REHG, INSIGHT & SOLIDARITY: THE DISCOURSE ETHICS OF JÜRGEN HABERMAS (1994); and SEYLA BENHABIB, SITUATING THE SELF 1-55 (1992).
157. See Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press, 1990). Habermas derives communicative ethics from his larger theory of communicative action, which argues, among other things, that members of social groups maintain their unity by communicating with each other for the purpose of arriving at a mutual understanding about their shared worlds. See id. See also, SIMONE CHAMBERS, REASONABLE DEMOCRACY: JÜRGEN HABERMAS AND THE POLITICS OF DISCOURSE 96-97 (1996). For background reading concerning communicative ethics, see generally, THE COMMUNICATIVE ETHICS CONTROVERSY (Seyla Benhabib & Fred Dallmayr eds., 1990); WILLIAM REHG, INSIGHT & SOLIDARITY: THE DISCOURSE ETHICS OF JÜRGEN HABERMAS (1994); and SEYLA BENHABIB, SITUATING THE SELF 1-55 (1992).
158. See Habermas, supra note 92, at 89 (quoting R. Alexy, Eine Theorie des praktischen Diskurses, in NORMENBEGRÜNDUNG, NORMENDURCHSETZUG (W. Oelmüller ed., 1978)).
159. See Habermas, supra note 92, at 89 (quoting R. Alexy, Eine Theorie des praktischen Diskurses, in NORMENBEGRÜNDUNG, NORMENDURCHSETZUG (W. Oelmüller ed., 1978)).
160. Id.
161. But see Kenneth Kressel, Research on Divorce Mediation: A Summary and Critique of the Literature, in THE ROLE OF MEDIATION IN DIVORCE PROCEEDINGS: A COMPARATIVE PERSPECTIVE 219, 221 (Vermont Law School Dispute Resolution Project, 1987) (criticizing the methodology of divorce mediation research for comparing mediation and adjudication without controlling for cost differences between the two processes, bias in the administration of mediations, and self-selection among disputants).
162. See Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes: A Longitudinal Evaluation, 17 FAM. L. Q. 497, 505-51 (1984) (presenting information collected as part of the Denver Custody Mediation Project and considering the effects of mediation and "adversarial intervention" on (1) the agreement, (2) compliance with or relitigation of the agreement, (3) the relationship between ex-spouses, (4) parent-child interaction, (5) time and money savings); Joan B. Kelly et al., Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study, in DIVORCE MEDIATION: THEORY AND PRACTICE 453, 454 (Jay Folberg & Ann Milne eds.,1988) (analyzing data from study of divorcing couples at five time points from entry into the process until two years after divorce on the basis of eight variables: "(1) demograph[y,] (2) individual psychology . . .[,] (3) interpersonal (spousal and ex-spousal) relationship[s] . . . [,] (4) coparental relationships and parental functioning . . . [,] and (5) parent-child relationships . . . [,] (6) satisfaction with process and result[,] (7) post-divorce compliance with all agreements[,] (8) situational, legal, cost and divorce settlement variables"); Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in DIVORCE MEDIATION: THEORY AND PRACTICE 429 (Jay Folberg & Ann Milne eds., 1988) (analyzing research from the Denver Custody Mediation Project and the Divorce Mediation Research Project to determine "divorce mediation's patterns, outcomes and impact"); Craig A. McEwen & Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237, 238, 241, 245 (1981) (studying the "nature and consequences" of mediation and adjudication by comparing outcomes in Maine small claim courts offering mediation to those that only offer adjudication); Roselle L. Wissler, Mediation and Adjudication in Small Claims Court: The Effects of Process and Case Characteristics, 29 L. & SOC'Y REV. 323, 326 (1995) (analyzing interviews with disputants in Boston small claims courts to "examine the characteristics that differentiate . . . mediation and adjudication . . . and the disputants who use each in order to explore the relative effect of resolution process and case characteristics on (1) disputant's evaluation of the third party, (2) description of outcome, (3) evaluation of process and outcome, (4) description of [the disputants'] relationship, and (5) reports of compliance [with the agreement]").
163. See Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes: A Longitudinal Evaluation, 17 FAM. L. Q. 497, 505-51 (1984) (presenting information collected as part of the Denver Custody Mediation Project and considering the effects of mediation and "adversarial intervention" on (1) the agreement, (2) compliance with or relitigation of the agreement, (3) the relationship between ex-spouses, (4) parent-child interaction, (5) time and money savings); Joan B. Kelly et al., Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study, in DIVORCE MEDIATION: THEORY AND PRACTICE 453, 454 (Jay Folberg & Ann Milne eds.,1988) (analyzing data from study of divorcing couples at five time points from entry into the process until two years after divorce on the basis of eight variables: "(1) demograph[y,] (2) individual psychology . . .[,] (3) interpersonal (spousal and ex-spousal) relationship[s] . . . [,] (4) coparental relationships
164. See Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes: A Longitudinal Evaluation, 17 FAM. L. Q. 497, 505-51 (1984) (presenting information collected as part of the Denver Custody Mediation Project and considering the effects of mediation and "adversarial intervention" on (1) the agreement, (2) compliance with or relitigation of the agreement, (3) the relationship between ex-spouses, (4) parent-child interaction, (5) time and money savings); Joan B. Kelly et al., Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study, in DIVORCE MEDIATION: THEORY AND PRACTICE 453, 454 (Jay Folberg & Ann Milne eds.,1988) (analyzing data from study of divorcing couples at five time points from entry into the process until two years after divorce on the basis of eight variables: "(1) demograph[y,] (2) individual psychology . . .[,] (3) interpersonal (spousal and ex-spousal) relationship[s] . . . [,] (4) coparental relationships and parental functioning . . . [,] and (5) parent-child relationships . . . [,] (6) satisfaction with process and result[,] (7) post-divorce compliance with all agreements[,] (8) situational, legal, cost and divorce settlement variables"); Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in DIVORCE MEDIATION: THEORY AND PRACTICE 429 (Jay Folberg & Ann Milne eds., 1988) (analyzing research from the Denver Custody Mediation Project and the Divorce Mediation Research Project to determine "divorce mediation's patterns, outcomes and impact"); Craig A. McEwen & Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237, 238, 241, 245 (1981) (studying the "nature and consequences" of mediation and adjudication by comparing outcomes in Maine small claim courts offering mediation to those that only offer adjudication); Roselle L. Wissler, Mediation and Adjudication in Small Claims Court: The Effects of Process and Case Characteristics, 29 L. & SOC'Y REV. 323, 326 (1995) (analyzing interviews with disputants in Boston small claims courts to "examine the characteristics that differentiate . . . mediation and adjudication . . . and the disputants who use each in order to explore the relative effect of resolution process and case characteristics on (1) disputant's evaluation of the third party, (2) description of outcome, (3) evaluation of process and outcome, (4) description of [the disputants'] relationship, and (5) reports of compliance [with the agreement]").
165. See Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes: A Longitudinal Evaluation, 17 FAM. L. Q. 497, 505-51 (1984) (presenting information collected as part of the Denver Custody Mediation Project and considering the effects of mediation and "adversarial intervention" on (1) the agreement, (2) compliance with or relitigation of the agreement, (3) the relationship between ex-spouses, (4) parent-child interaction, (5) time and money savings); Joan B. Kelly et al., Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study, in DIVORCE MEDIATION: THEORY AND PRACTICE 453, 454 (Jay Folberg & Ann Milne eds.,1988) (analyzing data from study of divorcing couples at five time points from entry into the process until two years after divorce on the basis of eight variables: "(1) demograph[y,] (2) individual psychology . . .[,] (3) interpersonal (spousal and ex-spousal) relationship[s] . . . [,] (4) coparental relationships and parental functioning . . . [,] and (5) parent-child relationships . . . [,] (6) satisfaction with process and result[,] (7) post-divorce compliance with all agreements[,] (8) situational, legal, cost and divorce settlement variables"); Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in DIVORCE MEDIATION: THEORY AND PRACTICE 429 (Jay Folberg & Ann Milne eds., 1988) (analyzing research from the Denver Custody Mediation Project and the Divorce Mediation Research Project to determine "divorce mediation's patterns, outcomes and impact"); Craig A. McEwen & Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237, 238, 241, 245 (1981) (studying the "nature and consequences" of mediation and adjudication by comparing outcomes in Maine small claim courts offering mediation to those that only offer adjudication); Roselle L. Wissler, Mediation and Adjudication in Small Claims Court: The Effects of Process and Case Characteristics, 29 L. & SOC'Y REV. 323, 326 (1995) (analyzing interviews with disputants in Boston small claims courts to "examine the characteristics that differentiate . . . mediation and adjudication . . . and the disputants who use each in order to explore the relative effect of resolution process and case characteristics on (1) disputant's evaluation of the third party, (2) description of outcome, (3) evaluation of process and outcome, (4) description of [the disputants'] relationship, and (5) reports of compliance [with the agreement]").
166. See Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes: A Longitudinal Evaluation, 17 FAM. L. Q. 497, 505-51 (1984) (presenting information collected as part of the Denver Custody Mediation Project and considering the effects of mediation and "adversarial intervention" on (1) the agreement, (2) compliance with or relitigation of the agreement, (3) the relationship between ex-spouses, (4) parent-child interaction, (5) time and money savings); Joan B. Kelly et al., Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study, in DIVORCE MEDIATION: THEORY AND PRACTICE 453, 454 (Jay Folberg & Ann Milne eds.,1988) (analyzing data from study of divorcing couples at five time points from entry into the process until two years after divorce on the basis of eight variables: "(1) demograph[y,] (2) individual psychology . . .[,] (3) interpersonal (spousal and ex-spousal) relationship[s] . . . [,] (4) coparental relationships and parental functioning . . . [,] and (5) parent-child relationships . . . [,] (6) satisfaction with process and result[,] (7) post-divorce compliance with all agreements[,] (8) situational, legal, cost and divorce settlement variables"); Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in DIVORCE MEDIATION: THEORY AND PRACTICE 429 (Jay Folberg & Ann Milne eds., 1988) (analyzing research from the Denver Custody Mediation Project and the Divorce Mediation Research Project to determine "divorce mediation's patterns, outcomes and impact"); Craig A. McEwen & Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237, 238, 241, 245 (1981) (studying the "nature and consequences" of mediation and adjudication by comparing outcomes in Maine small claim courts offering mediation to those that only offer adjudication); Roselle L. Wissler, Mediation and Adjudication in Small Claims Court: The Effects of Process and Case Characteristics, 29 L. & SOC'Y REV. 323, 326 (1995) (analyzing interviews with disputants in Boston small claims courts to "examine the characteristics that differentiate . . . mediation and adjudication . . . and the disputants who use each in order to explore the relative effect of resolution process and case characteristics on (1) disputant's evaluation of the third party, (2) description of outcome, (3) evaluation of process and outcome, (4) description of [the disputants'] relationship, and (5) reports of compliance [with the agreement]").
167. See McEwen & Maiman, supra note 96, at 256 (finding that 39.7% of litigants and 24% of mediating disputants remember feeling more angry after resolving the conflict and that 26.1% of litigants and 40.3% of mediating disputants feel less angry).
168. See e.g., Wissler, supra note 96, at 347-48 (reporting "greater pre-to post-court reduction" in negative perceptions of the other party among those disputants who mediate their dispute).
169. See Pearson & Thoennes, Divorce Mediation, supra note 96, at 443 (arguing that mediation is a "less damaging intervention" into the parties' relationship in divorce and custody proceedings based on the finding that 30% of those who settled a disagreement through mediation thought the process had improved their relationship and that 60% of them reported that some cooperation occurred between parties after the dispute, as compared to 30% of those who litigated their disputes).
170. See supra notes 96-99. Some studies found that disputants who mediated their disputes but did not reach settlements were significantly more likely than both those who reached agreements in mediation and those who only litigated their disputes to report increased negative behavior by their co-disputants and significantly less likely than any other group to report an improved relationship. See Jessica Pearson & Nancy Thoennes, Mediation Versus the Courts in Child Custody Cases, 1 NEG. J. 235, 240 (1985); Wissler, supra note 96, at 347-48. Wissler implies that, when mediation does not result in an agreement, it worsens a relationship more often than litigation. Id. But Wissler's conclusion is flawed because it assumes that the sampled groups (successful mediation, unsuccessful mediation, adjudication) were equally adversarial pre-process. It is likely that the disputants who failed to reach settlement through mediation had more persistent disputes or more adversarial relationships prior to attempts at dispute resolution than the other sampled groups. In other words, by separating mediating disputants who reached a mediated settlement from mediating disputants who did not, the researcher may actually be sorting those with relatively easy-to-resolve disputes and relatively cooperative relationships from those with relatively hard-to-resolve disputes and relatively combative relationships. Thus, her finding that mediating disputants who did not reach mediated settlements were more likely to report negative behavior by their co-disputants may be explained by the fact that the disputants in those cases were significantly more combative with each other as compared to the entire sample of all mediated and adjudicated cases.
171. See supra notes 96-99. Some studies found that disputants who mediated their disputes but did not reach settlements were significantly more likely than both those who reached agreements in mediation and those who only litigated their disputes to report increased negative behavior by their co-disputants and significantly less likely than any other group to report an improved relationship. See Jessica Pearson & Nancy Thoennes, Mediation Versus the Courts in Child Custody Cases, 1 NEG. J. 235, 240 (1985); Wissler, supra note 96, at 347-48. Wissler implies that, when mediation does not result in an agreement, it worsens a relationship more often than litigation. Id. But Wissler's conclusion is flawed because it assumes that the sampled groups (successful mediation, unsuccessful mediation, adjudication) were equally adversarial pre-process. It is likely that the disputants who failed to reach settlement through mediation had more persistent disputes or more adversarial relationships prior to attempts at dispute resolution than the other sampled groups. In other words, by separating mediating disputants who reached a mediated settlement from mediating disputants who did not, the researcher may actually be sorting those with relatively easy-to-resolve disputes and relatively cooperative relationships from those with relatively hard-to-resolve disputes and relatively combative relationships. Thus, her finding that mediating disputants who did not reach mediated settlements were more likely to report negative behavior by their co-disputants may be explained by the fact that the disputants in those cases were significantly more combative with each other as compared to the entire sample of all mediated and adjudicated cases.
172. See supra notes 96-99. Some studies found that disputants who mediated their disputes but did not reach settlements were significantly more likely than both those who reached agreements in mediation and those who only litigated their disputes to report increased negative behavior by their co-disputants and significantly less likely than any other group to report an improved relationship. See Jessica Pearson & Nancy Thoennes, Mediation Versus the Courts in Child Custody Cases, 1 NEG. J. 235, 240 (1985); Wissler, supra note 96, at 347-48. Wissler implies that, when mediation does not result in an agreement, it worsens a relationship more often than litigation. Id. But Wissler's conclusion is flawed because it assumes that the sampled groups (successful mediation, unsuccessful mediation, adjudication) were equally adversarial pre-process. It is likely that the disputants who failed to reach settlement through mediation had more persistent disputes or more adversarial relationships prior to attempts at dispute resolution than the other sampled groups. In other words, by separating mediating disputants who reached a mediated settlement from mediating disputants who did not, the researcher may actually be sorting those with relatively easy-to-resolve disputes and relatively cooperative relationships from those with relatively hard-to-resolve disputes and relatively combative relationships. Thus, her finding that mediating disputants who did not reach mediated settlements were more likely to report negative behavior by their co-disputants may be explained by the fact that the disputants in those cases were significantly more combative with each other as compared to the entire sample of all mediated and adjudicated cases.
173. See Thomas J. Stipanowich, Beyond Arbitration: Innovations and Evolution in the United States Construction Industry, 31 WAKE FOREST L. REV. 65, 146-47 (1996) (comparing mediation and arbitration as means of resolving construction disputes and presenting tables of comparative results).
174. See id. at 146-47.
175. See Sheila M. Johnson, A Medical Malpractice Litigator Proposes Mediation, 52 DISP. RESOL J. 42, 46 (Spring 1997) (arguing that the mandatory medical malpractice "mediation" procedures in Michigan and Wisconsin are a form of non-binding arbitration that promotes adversarial competition among the parties).
176. See NANCY AINSWORTH-VAUGHN, CLAIMING POWER IN DOCTOR-PATIENT TALK 68-71, 89 (1998) (describing how physicians control conversations with patients by acknowledging a patient's comment and immediately changing the subject); ALEXANDRA DUNDAS TODD, INTIMATE ADVERSARIES 82-90 (1989); CANDACE WEST, ROUTINE COMPLICATIONS: TROUBLES WITH TALK BETWEEN DOCTORS AND PATIENTS 51-96 (1984) (analyzing patterns of interruptions and question in patient-physician conversations and concluding that conversations function as a mechanism of physician control).
177. See NANCY AINSWORTH-VAUGHN, CLAIMING POWER IN DOCTOR-PATIENT TALK 68-71, 89 (1998) (describing how physicians control conversations with patients by acknowledging a patient's comment and immediately changing the subject); ALEXANDRA DUNDAS TODD, INTIMATE ADVERSARIES 82-90 (1989); CANDACE WEST, ROUTINE COMPLICATIONS: TROUBLES WITH TALK BETWEEN DOCTORS AND PATIENTS 51-96 (1984) (analyzing patterns of interruptions and question in patient-physician conversations and concluding that conversations function as a mechanism of physician control).
178. See NANCY AINSWORTH-VAUGHN, CLAIMING POWER IN DOCTOR-PATIENT TALK 68-71, 89 (1998) (describing how physicians control conversations with patients by acknowledging a patient's comment and immediately changing the subject); ALEXANDRA DUNDAS TODD, INTIMATE ADVERSARIES 82-90 (1989); CANDACE WEST, ROUTINE COMPLICATIONS: TROUBLES WITH TALK BETWEEN DOCTORS AND PATIENTS 51-96 (1984) (analyzing patterns of interruptions and question in patient-physician conversations and concluding that conversations function as a mechanism of physician control).
179. See Vera M. Henzl, Linguistic Means of Social Distancing in Physician-Patient Communication, in DOCTOR-PATIENT INTERACTION 78, 86-87 (Walburga von Raffler-Engel ed., 1989) (stating that physicians' use of "technical information . . . is one of the most obvious areas of potential miscommunication . . ."). Further evidence that physicians use medical terminology to communicate medical information to patients are studies concluding that informed consent forms are often written using a vocabulary that is beyond what the average patient can understand and that includes technical medical terminology. See, e.g., Goldstein et al., Consent Form Readability in University-Sponsored Research, 42 J. FAM. PRACT. 606, 608 (1996) (analyzing research that indicates consent forms for university research read at a twelfth grade level whereas the general population reads at a sixth grade level); Hopper et al., Informed Consent for Clinical and Research Imaging Procedures: How Much Do Patients Understand?, 164 AM. J. ROENTGENOL. 493, 494 (1995) (finding that clinical radiologist's consent forms are more difficult to understand than research radiologist's consent forms, despite the use of more complex words in clinical consent forms); Grossman et al., Are Informed Consent Forms that Describe Clinical Oncology Research Protocols Readable by Most Patients and Their Families?, 12 J. CLIN. ONCOL. 2211, 2212, 2215 (1994) (suggesting that medical information should be written so that it can be read by a patient with an eighth grade education); Hopper et al., Readability of Informed Consent Forms for Use with Iodinated Contrast Media, 187 RADIOLOGY 279, 279 (1993) (finding vocabulary in radiology consent forms requires a high school education).
180. See Vera M. Henzl, Linguistic Means of Social Distancing in Physician-Patient Communication, in DOCTOR-PATIENT INTERACTION 78, 86-87 (Walburga von Raffler-Engel ed., 1989) (stating that physicians' use of "technical information . . . is one of the most obvious areas of potential miscommunication . . ."). Further evidence that physicians use medical terminology to communicate medical information to patients are studies concluding that informed consent forms are often written using a vocabulary that is beyond what the average patient can understand and that includes technical medical terminology. See, e.g., Goldstein et al., Consent Form Readability in University-Sponsored Research, 42 J. FAM. PRACT. 606, 608 (1996) (analyzing research that indicates consent forms for university research read at a twelfth grade level whereas the general population reads at a sixth grade level); Hopper et al., Informed Consent for Clinical and Research Imaging Procedures: How Much Do Patients Understand?, 164 AM. J. ROENTGENOL. 493, 494 (1995) (finding that clinical radiologist's consent forms are more difficult to understand than research radiologist's consent forms, despite the use of more complex words in clinical consent forms); Grossman et al., Are Informed Consent Forms that Describe Clinical Oncology Research Protocols Readable by Most Patients and Their Families?, 12 J. CLIN. ONCOL. 2211, 2212, 2215 (1994) (suggesting that medical information should be written so that it can be read by a patient with an eighth grade education); Hopper et al., Readability of Informed Consent Forms for Use with Iodinated Contrast Media, 187 RADIOLOGY 279, 279 (1993) (finding vocabulary in radiology consent forms requires a high school education).
181. See Vera M. Henzl, Linguistic Means of Social Distancing in Physician-Patient Communication, in DOCTOR-PATIENT INTERACTION 78, 86-87 (Walburga von Raffler-Engel ed., 1989) (stating that physicians' use of "technical information . . . is one of the most obvious areas of potential miscommunication . . ."). Further evidence that physicians use medical terminology to communicate medical information to patients are studies concluding that informed consent forms are often written using a vocabulary that is beyond what the average patient can understand and that includes technical medical terminology. See, e.g., Goldstein et al., Consent Form Readability in University-Sponsored Research, 42 J. FAM. PRACT. 606, 608 (1996) (analyzing research that indicates consent forms for university research read at a twelfth grade level whereas the general population reads at a sixth grade level); Hopper et al., Informed Consent for Clinical and Research Imaging Procedures: How Much Do Patients Understand?, 164 AM. J. ROENTGENOL. 493, 494 (1995) (finding that clinical radiologist's consent forms are more difficult to understand than research radiologist's consent forms, despite the use of more complex words in clinical consent forms); Grossman et al., Are Informed Consent Forms that Describe Clinical Oncology Research Protocols Readable by Most Patients and Their Families?, 12 J. CLIN. ONCOL. 2211, 2212, 2215 (1994) (suggesting that medical information should be written so that it can be read by a patient with an eighth grade education); Hopper et al., Readability of Informed Consent Forms for Use with Iodinated Contrast Media, 187 RADIOLOGY 279, 279 (1993) (finding vocabulary in radiology consent forms requires a high school education).
182. See Vera M. Henzl, Linguistic Means of Social Distancing in Physician-Patient Communication, in DOCTOR-PATIENT INTERACTION 78, 86-87 (Walburga von Raffler-Engel ed., 1989) (stating that physicians' use of "technical information . . . is one of the most obvious areas of potential miscommunication . . ."). Further evidence that physicians use medical terminology to communicate medical information to patients are studies concluding that informed consent forms are often written using a vocabulary that is beyond what the average patient can understand and that includes technical medical terminology. See, e.g., Goldstein et al., Consent Form Readability in University-Sponsored Research, 42 J. FAM. PRACT. 606, 608 (1996) (analyzing research that indicates consent forms for university research read at a twelfth grade level whereas the general population reads at a sixth grade level); Hopper et al., Informed Consent for Clinical and Research Imaging Procedures: How Much Do Patients Understand?, 164 AM. J. ROENTGENOL. 493, 494 (1995) (finding that clinical radiologist's consent forms are more difficult to understand than research radiologist's consent forms, despite the use of more complex words in clinical consent forms); Grossman et al., Are Informed Consent Forms that Describe Clinical Oncology Research Protocols Readable by Most Patients and Their Families?, 12 J. CLIN. ONCOL. 2211, 2212, 2215 (1994) (suggesting that medical information should be written so that it can be read by a patient with an eighth grade education); Hopper et al., Readability of Informed Consent Forms for Use with Iodinated Contrast Media, 187 RADIOLOGY 279, 279 (1993) (finding vocabulary in radiology consent forms requires a high school education).
183. See Vera M. Henzl, Linguistic Means of Social Distancing in Physician-Patient Communication, in DOCTOR-PATIENT INTERACTION 78, 86-87 (Walburga von Raffler-Engel ed., 1989) (stating that physicians' use of "technical information . . . is one of the most obvious areas of potential miscommunication . . ."). Further evidence that physicians use medical terminology to communicate medical information to patients are studies concluding that informed consent forms are often written using a vocabulary that is beyond what the average patient can understand and that includes technical medical terminology. See, e.g., Goldstein et al., Consent Form Readability in University-Sponsored Research, 42 J. FAM. PRACT. 606, 608 (1996) (analyzing research that indicates consent forms for university research read at a twelfth grade level whereas the general population reads at a sixth grade level); Hopper et al., Informed Consent for Clinical and Research Imaging Procedures: How Much Do Patients Understand?, 164 AM. J. ROENTGENOL. 493, 494 (1995) (finding that clinical radiologist's consent forms are more difficult to understand than research radiologist's consent forms, despite the use of more complex words in clinical consent forms); Grossman et al., Are Informed Consent Forms that Describe Clinical Oncology Research Protocols Readable by Most Patients and Their Families?, 12 J. CLIN. ONCOL. 2211, 2212, 2215 (1994) (suggesting that medical information should be written so that it can be read by a patient with an eighth grade education); Hopper et al., Readability of Informed Consent Forms for Use with Iodinated Contrast Media, 187 RADIOLOGY 279, 279 (1993) (finding vocabulary in radiology consent forms requires a high school education).
184. See Laura C. Hanson et al., What Is Wrong With End-of-Life Care? Opinions of Bereaved Family Members, 45 J. AM. GERIATRICS SOC. 1339, 1342 (1997); cf. Harriet Able-Boone, Parent-Professional Communication Relative to Medical Care Decision Making for Seriously Ill Newborns, in DOCTOR-PATIENT INTERACTION 227, 238-39 (Walburga von Raffler-Engel ed., 1989) (discussing parents' need "for more [truthful and accurate] information when making treatment decisions for their child").
185. See Laura C. Hanson et al., What Is Wrong With End-of-Life Care? Opinions of Bereaved Family Members, 45 J. AM. GERIATRICS SOC. 1339, 1342 (1997); cf. Harriet Able-Boone, Parent-Professional Communication Relative to Medical Care Decision Making for Seriously Ill Newborns, in DOCTOR-PATIENT INTERACTION 227, 238-39 (Walburga von Raffler-Engel ed., 1989) (discussing parents' need "for more [truthful and accurate] information when making treatment decisions for their child").
186. See Hanson et al., supra note 106, at 1342.
187. See ROBERT BUCKMAN, How TO BREAK BAD NEWS: A GUIDE FOR HEALTH CARE PROFESSIONALS 21, 29 (1992) (explaining that physicians find discussing death with patients uncomfortable because physicians mistakenly believe that death only results from a failure of the "medical system or staff").
188. See supra text accompanying notes 67-787 for a review of mediation techniques.
189. See e.g., West & Gibson, supra note 9, at 68 (finding that ethics committees "seem generally wary of referring to the matters dealt with in case consultations as 'disputes' or 'conflicts,'" suggesting that consultations occur at so early a stage in a physician-patient disagreement that they cannot be accurately labeled as "disputes"); JOHN LA PUMA & DAVID SCHIEDERMAYER, ETHICS CONSULTATION: A PRACTICAL GUIDE 139-202 (1994) (presenting twenty-five different case studies of ethics consultations all of which suggested that the consultations occurred during the patient's treatment shortly after the dispute arose).
190. See e.g., West & Gibson, supra note 9, at 68 (finding that ethics committees "seem generally wary of referring to the matters dealt with in case consultations as 'disputes' or 'conflicts,'" suggesting that consultations occur at so early a stage in a physician-patient disagreement that they cannot be accurately labeled as "disputes"); JOHN LA PUMA & DAVID SCHIEDERMAYER, ETHICS CONSULTATION: A PRACTICAL GUIDE 139-202 (1994) (presenting twenty-five different case studies of ethics consultations all of which suggested that the consultations occurred during the patient's treatment shortly after the dispute arose).
191. Telephone Interview with Kristen Tym, Center for the Study of Bioethics at the Medical College of Wisconsin (Oct. 18, 1999) (finding, in a survey of Wisconsin ethics committees, that 80% of the committees responded that they had never consulted on a case in which litigation had been threatened, which suggests that ethics consultations generally occur before litigation is even considered). See also LA PUMA & SCHIEDERMAYER, supra note 110, at 139-202 (presenting twenty-five different case studies of ethics consultations, none of which mentioned an ongoing lawsuit).
192. See supra note 19.
193. See West & Gibson, supra note 9, at 69 ("To the extent that the committee members are without independent interests and views concerning the issues, and to the extent that they see their roles as helping the parties work toward resolution, their actions may resemble those of a neutral mediator or facilitator.").
194. See Wilson, supra note 9, at 357 (observing that 84% of hospitals with more than 200 beds have an ethics committee) (citing AMERICAN HOSP. ASS'N, HOSPITAL STATISTICS 212 (1994)).
195. See Wilson, supra note 9, at 357 (observing that 84% of hospitals with more than 200 beds have an ethics committee) (citing AMERICAN HOSP. ASS'N, HOSPITAL STATISTICS 212 (1994)).
196. See Hoffmann, supra note 6, at 847 ("Virtually all committees are composed almost entirely of hospital or nursing home staff.") (citing Hoffmann, supra note 9, at 110).
197. See Hoffmann, supra note 6, at 847 ("Virtually all committees are composed almost entirely of hospital or nursing home staff.") (citing Hoffmann, supra note 9, at 110).
198. For an overview of ethics consultation, see LA PUMA & SCHIEDERMAYER, supra note 110, at 1-36 (providing an outline of the consultation process). For criticism of the informality of ethics consultation process, see Susan M. Wolf, Ethics Committees and Due Process: Nesting Rights in a Community of Caring, 50 MD. L. REV. 798, 803 (1991) (arguing that ethics consultation denies a patient's due process rights by failing to give notice, and an opportunity to be heard, "much less other tools a patient might need to participate effectively"). See also Wilson supra note 9, at 391-92 ("The due process protection afforded by judicial review but lacking in committee proceedings include uniform procedural guidelines, notification to all involved parties of a hearing, an appeal process, and the mandatory inclusion of an advocate for the patient's interests.").
199. For an overview of ethics consultation, see LA PUMA & SCHIEDERMAYER, supra note 110, at 1-36 (providing an outline of the consultation process). For criticism of the informality of ethics consultation process, see Susan M. Wolf, Ethics Committees and Due Process: Nesting Rights in a Community of Caring, 50 MD. L. REV. 798, 803 (1991) (arguing that ethics consultation denies a patient's due process rights by failing to give notice, and an opportunity to be heard, "much less other tools a patient might need to participate effectively"). See also Wilson supra note 9, at 391-92 ("The due process protection afforded by judicial review but lacking in committee proceedings include uniform procedural guidelines, notification to all involved parties of a hearing, an appeal process, and the mandatory inclusion of an advocate for the patient's interests.").
200. For an overview of ethics consultation, see LA PUMA & SCHIEDERMAYER, supra note 110, at 1-36 (providing an outline of the consultation process). For criticism of the informality of ethics consultation process, see Susan M. Wolf, Ethics Committees and Due Process: Nesting Rights in a Community of Caring, 50 MD. L. REV. 798, 803 (1991) (arguing that ethics consultation denies a patient's due process rights by failing to give notice, and an opportunity to be heard, "much less other tools a patient might need to participate effectively"). See also Wilson supra note 9, at 391-92 ("The due process protection afforded by judicial review but lacking in committee proceedings include uniform procedural guidelines, notification to all involved parties of a hearing, an appeal process, and the mandatory inclusion of an advocate for the patient's interests.").
201. See LA PUMA & SCHIEDERMAYER, supra note 110, at 6-11 (asserting that the consultant is not properly prepared to see the patient until he or she has met with members of the patient's health care team and has reviewed the patient's medical records).
202. Id. at 11-17 ("The consultant should personally see the patient to gather data because this method seems to improve the process and outcome of consultation."). A list of ten reasons why a consultant should personally meet with a patient is found at page 12.
203. See Kelly et al., supra note 9, at 141 ("[I]n three of . . . nine cases, the patient and family were not included in or informed of the ethics consultation."); West & Gibson, supra note 9, at 69 ("[C]ommittees may meet with one party without meeting with the other, or may invite one party to the committee meeting, while meeting with the other only outside the framework of the committee."). My own experience as an ethics committee member confirms that this is the way some committees consult on cases. One committee relied on a member who had interviewed the patient or the patient's family members outside of the committee process to describe the interests, preferences and arguments of those parties while the committee as a whole heard the other party, the patient's attending physician, describe his or her position in the dispute.
204. See Kelly et al., supra note 9, at 141 ("[I]n three of . . . nine cases, the patient and family were not included in or informed of the ethics consultation."); West & Gibson, supra note 9, at 69 ("[C]ommittees may meet with one party without meeting with the other, or may invite one party to the committee meeting, while meeting with the other only outside the framework of the committee."). My own experience as an ethics committee member confirms that this is the way some committees consult on cases. One committee relied on a member who had interviewed the patient or the patient's family members outside of the committee process to describe the interests, preferences and arguments of those parties while the committee as a whole heard the other party, the patient's attending physician, describe his or her position in the dispute.
205. See Hoffmann, supra note 6, at 845-46 ("In most cases, the ethics committee members deliberate among themselves and arrive at a recommendation."); Hoffmann, supra note 9, at 111 (finding that 100% of surveyed institutional ethics committee members interviewed reported that the typical consultation process involves the committee's identifying and making a recommendation).
206. See Hoffmann, supra note 6, at 845-46 ("In most cases, the ethics committee members deliberate among themselves and arrive at a recommendation."); Hoffmann, supra note 9, at 111 (finding that 100% of surveyed institutional ethics committee members interviewed reported that the typical consultation process involves the committee's identifying and making a recommendation).
207. See supra text accompanying note 67 (describing mediation as assisted negotiation).
208. See Johnson supra note 103, at 45 (arguing that medical malpractice mediation programs mandated by statute "were never meant to serve as mediation because the purpose did not contemplate the peaceful and mutual resolution of claims to the mutual satisfaction of both parties" but instead were designed to dispose of frivolous malpractice claims).
209. Id. at 46 (emphasis added).
210. See Wilson, supra note 9, at 389 n. 186 (observing that committees contain a higher percentage of physicians than any other group, and a physician chaired 65% of the committees) (citing Hoffmann, supra note 9, at 108).
211. See Wilson, supra note 9, at 389 n. 186 (observing that committees contain a higher percentage of physicians than any other group, and a physician chaired 65% of the committees) (citing Hoffmann, supra note 9, at 108).
212. See supra note 115. See also Hoffmann, supra note 6, at 847 ("Some committees include community representatives but this is often a token gesture - typically one such person sits on the committee, rarely two or more.").
213. See supra note 115. See also Hoffmann, supra note 6, at 847 ("Some committees include community representatives but this is often a token gesture - typically one such person sits on the committee, rarely two or more.").
214. See LA PUMA & SCHIEDERMAYER, supra note 110, at 74 (stating that ethics consultants are often salaried employees of a health care institution).
215. See George J. Annas, Ethics Committees: From Ethical Comfort to Ethical Cover, 32 HASTINGS CENTER REPORT 18, 19 (May-June 1991) (observing that hospital ethics committees tend to function primarily to protect the institution).
216. See infra Part IV.B. for a proposal that health care institutions should be required to provide patients and their decision-makers with access to outside mediation and to disclose institutional affiliations of any mediators staffing an internal mediation service.
217. See supra text accompanying notes 29-32.
218. See Hoffmann, supra note 6, at 865.
219. Id. at 865-66 (asserting that the amount of technical expertise that a physician has makes it difficult to challenge that physician's opinion, unless the patient or family brings a medical expert to the table).
220. See generally Lerman, supra note 72, at 102-06 (examining how different mediation techniques permit mediation of disputes between spouses despite the power imbalance caused by a history of spousal abuse between the parties). Techniques relevant to the mediation of EOLT disputes include beginning mediation by meeting with each party, reaching a consensus about the nature and scope of the disagreement, and bringing an advocate to the mediation. A third party, who is not necessarily an attorney, may be better able to articulate the patient's needs in a situation where unequal bargaining power is present. See also notes 67-787 and the accompanying text for a general review of mediation techniques.
221. See generally Lerman, supra note 72, at 102-06 (examining how different mediation techniques permit mediation of disputes between spouses despite the power imbalance caused by a history of spousal abuse between the parties). Techniques relevant to the mediation of EOLT disputes include beginning mediation by meeting with each party, reaching a consensus about the nature and scope of the disagreement, and bringing an advocate to the mediation. A third party, who is not necessarily an attorney, may be better able to articulate the patient's needs in a situation where unequal bargaining power is present. See also notes 67-787 and the accompanying text for a general review of mediation techniques.
222. See supra note 70 and accompanying text.
223. See Lerman, supra note 72, at 103-04 (suggesting that, to offset power imbalances between perpetrators and victims of spousal abuse, mediators might begin a mediation by meeting separately with each party).
224. See Metzloff et al., supra note 72, at 117 ("[I]n complex situations such as malpractice, multiple sessions would be expected because the parties would grapple with a series of issues and then adjourn to obtain additional facts or to reflect upon the arguments made by the opposition;" although most court ordered mediation involved only one session); KOVACH, supra note 70, at 128 (recognizing that "after a relaxing break or private time to reconsider, parties see things a little differently").
225. See Metzloff et al., supra note 72, at 117 ("[I]n complex situations such as malpractice, multiple sessions would be expected because the parties would grapple with a series of issues and then adjourn to obtain additional facts or to reflect upon the arguments made by the opposition;" although most court ordered mediation involved only one session); KOVACH, supra note 70, at 128 (recognizing that "after a relaxing break or private time to reconsider, parties see things a little differently").
226. See supra text accompanying notes 74-76 (explaining these techniques).
227. See supra text accompanying notes 104-08.
228. Hoffmann, supra note 6, at 863 (speculating that physicians looking for an official affirmation of their position may distrust mediation that equalizes the power between parties).
229. "As one plaintiff's lawyer put it, '[m]ost physicians will do anything to avoid being listed in the Data Bank . . . .'" Metzloff et al., supra note 72, at 150 (finding that the Data Bank is a significant obstacle to mediation once a lawsuit is filed).
230. See 45 C.F.R. § 60.7 (requiring the reporting of the healthcare practitioner's name, work and home addresses, social security number, date of birth, names of professional schools attended, professional license numbers, Drug Enforcement Agency registration number, and names of all hospitals affiliated with).
231. See 45 C.F.R. § 60.11 (providing that hospitals, healthcare practitioners, boards of medical examiners and state licensing boards, healthcare clinics, and attorneys may request information).
232. Classically, parties to a mediation generate the values that guide any settlement of their dispute. See generally Fuller, supra note 77, at 325-26. Yet, mediation often is used to address disputes that implicate principles of social justice, which the parties to the dispute should respect in their attempts to resolve the dispute by mutual agreement. See e.g., Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 46 (1981) (exploring this issue in the context of environmental dispute mediation and concluding that mediated agreements must serve social values related to the environment as well as the interests of each party). Such an approach to mediation, however, conflicts with the traditional view that mediators must remain neutral in the process of assisting the parties in reaching an agreement and that the process and its outcome belongs to the parties. See e.g., Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that the mediator who enforces an external viewpoint of the fairness of a mediated agreement is at odds with the traditional concept of mediation). The propriety of norm enforcement in mediation continues to be a matter of considerable debate, and it is usually discussed in the context of the mediator's obligation of neutrality. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate or Advise?, 38 S. TEX. L. REV. 669, 670 (1997) (addressing the propriety of mediators to (1) evaluate and (2) give advice or information). For a recent articulation of the role of social norms in mediation, See Waldman, supra note 25, at 707 (proposing that mediation processes be distinguished by their treatment of social norms); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155, 165-66 (1998) (discussing the role of social norms in evaluative and facilitative mediation).
233. Classically, parties to a mediation generate the values that guide any settlement of their dispute. See generally Fuller, supra note 77, at 325-26. Yet, mediation often is used to address disputes that implicate principles of social justice, which the parties to the dispute should respect in their attempts to resolve the dispute by mutual agreement. See e.g., Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 46 (1981) (exploring this issue in the context of environmental dispute mediation and concluding that mediated agreements must serve social values related to the environment as well as the interests of each party). Such an approach to mediation, however, conflicts with the traditional view that mediators must remain neutral in the process of assisting the parties in reaching an agreement and that the process and its outcome belongs to the parties. See e.g., Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that the mediator who enforces an external viewpoint of the fairness of a mediated agreement is at odds with the traditional concept of mediation). The propriety of norm enforcement in mediation continues to be a matter of considerable debate, and it is usually discussed in the context of the mediator's obligation of neutrality. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate or Advise?, 38 S. TEX. L. REV. 669, 670 (1997) (addressing the propriety of mediators to (1) evaluate and (2) give advice or information). For a recent articulation of the role of social norms in mediation, See Waldman, supra note 25, at 707 (proposing that mediation processes be distinguished by their treatment of social norms); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155, 165-66 (1998) (discussing the role of social norms in evaluative and facilitative mediation).
234. Classically, parties to a mediation generate the values that guide any settlement of their dispute. See generally Fuller, supra note 77, at 325-26. Yet, mediation often is used to address disputes that implicate principles of social justice, which the parties to the dispute should respect in their attempts to resolve the dispute by mutual agreement. See e.g., Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 46 (1981) (exploring this issue in the context of environmental dispute mediation and concluding that mediated agreements must serve social values related to the environment as well as the interests of each party). Such an approach to mediation, however, conflicts with the traditional view that mediators must remain neutral in the process of assisting the parties in reaching an agreement and that the process and its outcome belongs to the parties. See e.g., Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that the mediator who enforces an external viewpoint of the fairness of a mediated agreement is at odds with the traditional concept of mediation). The propriety of norm enforcement in mediation continues to be a matter of considerable debate, and it is usually discussed in the context of the mediator's obligation of neutrality. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate or Advise?, 38 S. TEX. L. REV. 669, 670 (1997) (addressing the propriety of mediators to (1) evaluate and (2) give advice or information). For a recent articulation of the role of social norms in mediation, See Waldman, supra note 25, at 707 (proposing that mediation processes be distinguished by their treatment of social norms); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155, 165-66 (1998) (discussing the role of social norms in evaluative and facilitative mediation).
235. Classically, parties to a mediation generate the values that guide any settlement of their dispute. See generally Fuller, supra note 77, at 325-26. Yet, mediation often is used to address disputes that implicate principles of social justice, which the parties to the dispute should respect in their attempts to resolve the dispute by mutual agreement. See e.g., Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 46 (1981) (exploring this issue in the context of environmental dispute mediation and concluding that mediated agreements must serve social values related to the environment as well as the interests of each party). Such an approach to mediation, however, conflicts with the traditional view that mediators must remain neutral in the process of assisting the parties in reaching an agreement and that the process and its outcome belongs to the parties. See e.g., Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that the mediator who enforces an external viewpoint of the fairness of a mediated agreement is at odds with the traditional concept of mediation). The propriety of norm enforcement in mediation continues to be a matter of considerable debate, and it is usually discussed in the context of the mediator's obligation of neutrality. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate or Advise?, 38 S. TEX. L. REV. 669, 670 (1997) (addressing the propriety of mediators to (1) evaluate and (2) give advice or information). For a recent articulation of the role of social norms in mediation, See Waldman, supra note 25, at 707 (proposing that mediation processes be distinguished by their treatment of social norms); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155, 165-66 (1998) (discussing the role of social norms in evaluative and facilitative mediation).
236. Classically, parties to a mediation generate the values that guide any settlement of their dispute. See generally Fuller, supra note 77, at 325-26. Yet, mediation often is used to address disputes that implicate principles of social justice, which the parties to the dispute should respect in their attempts to resolve the dispute by mutual agreement. See e.g., Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 46 (1981) (exploring this issue in the context of environmental dispute mediation and concluding that mediated agreements must serve social values related to the environment as well as the interests of each party). Such an approach to mediation, however, conflicts with the traditional view that mediators must remain neutral in the process of assisting the parties in reaching an agreement and that the process and its outcome belongs to the parties. See e.g., Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that the mediator who enforces an external viewpoint of the fairness of a mediated agreement is at odds with the traditional concept of mediation). The propriety of norm enforcement in mediation continues to be a matter of considerable debate, and it is usually discussed in the context of the mediator's obligation of neutrality. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate or Advise?, 38 S. TEX. L. REV. 669, 670 (1997) (addressing the propriety of mediators to (1) evaluate and (2) give advice or information). For a recent articulation of the role of social norms in mediation, See Waldman, supra note 25, at 707 (proposing that mediation processes be distinguished by their treatment of social norms); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155, 165-66 (1998) (discussing the role of social norms in evaluative and facilitative mediation).
237. Classically, parties to a mediation generate the values that guide any settlement of their dispute. See generally Fuller, supra note 77, at 325-26. Yet, mediation often is used to address disputes that implicate principles of social justice, which the parties to the dispute should respect in their attempts to resolve the dispute by mutual agreement. See e.g., Lawrence Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 46 (1981) (exploring this issue in the context of environmental dispute mediation and concluding that mediated agreements must serve social values related to the environment as well as the interests of each party). Such an approach to mediation, however, conflicts with the traditional view that mediators must remain neutral in the process of assisting the parties in reaching an agreement and that the process and its outcome belongs to the parties. See e.g., Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85, 117 (1981) (arguing that the mediator who enforces an external viewpoint of the fairness of a mediated agreement is at odds with the traditional concept of mediation). The propriety of norm enforcement in mediation continues to be a matter of considerable debate, and it is usually discussed in the context of the mediator's obligation of neutrality. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate or Advise?, 38 S. TEX. L. REV. 669, 670 (1997) (addressing the propriety of mediators to (1) evaluate and (2) give advice or information). For a recent articulation of the role of social norms in mediation, See Waldman, supra note 25, at 707 (proposing that mediation processes be distinguished by their treatment of social norms); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155, 165-66 (1998) (discussing the role of social norms in evaluative and facilitative mediation).
238. See generally, Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073, 1085-87 (1984) (arguing that settlement may serve the private motivations of the parties, but fail to secure justice).
239. See e.g., Hoffmann, supra note 6, at 870 ("[T]o the extent that mediation results in a patient or family member ceding legal rights to a health care provider or institution, it leads to violation of state laws and policy as well as constitutional principles.").
240. Mediators have a professional responsibility to respect the principle that parties determine for themselves whether or not to enter into any mediated agreement. See GRENIG, supra note 67, at 132 (summarizing the standards of conduct adopted by the American Arbitration Association, the American Bar Association, and the Society for Professionals in Dispute Resolution).
241. See Jamie Henikoff & Michael Moffitt, Remodeling the Model Standards of Conduct for Mediators, 2 HARV. NEGOTIATION L. REV. 87, 104 (1997) ("[T]he principle of informed consent requires that parties understand the substantive content of any mediated settlement in light of that party's own interests.").
242. See FADEN & BEAUCHAMP, supra note 45, at 251 (defining an autonomous act as one where the person adequately apprehends all of the relevant information that correctly describes (1) the nature of the action, and (2) the foreseeable consequences that might result).
243. Whether a mediator should introduce social norms into the mediation process is a controversial question. See e.g., John Feerick et al., Standards of Professional Conduct in Alternative Dispute Resolution, 1995 J. DISP. RESOL. 95, 100, 104 (1995) (discussing whether a mediator should ever give an opinion on a legal matter). However, there is a consensus that, at the very least, a mediator is the source of last resort for informing disputants that a social norm exists and about the weaknesses of each disputant's case under that social norm. See e.g., Feerick et al., supra, at 103-07, 110-11 (finding that opponents of evaluative mediation concede that mediators should introduce social norms into mediation when the disputants would otherwise be uninformed about relevant social norms or when there is an imbalance of power that threatens to undermine the fairness of a mediated agreement).
244. Whether a mediator should introduce social norms into the mediation process is a controversial question. See e.g., John Feerick et al., Standards of Professional Conduct in Alternative Dispute Resolution, 1995 J. DISP. RESOL. 95, 100, 104 (1995) (discussing whether a mediator should ever give an opinion on a legal matter). However, there is a consensus that, at the very least, a mediator is the source of last resort for informing disputants that a social norm exists and about the weaknesses of each disputant's case under that social norm. See e.g., Feerick et al., supra, at 103-07, 110-11 (finding that opponents of evaluative mediation concede that mediators should introduce social norms into mediation when the disputants would otherwise be uninformed about relevant social norms or when there is an imbalance of power that threatens to undermine the fairness of a mediated agreement).
245. See Currie, supra note 81, at 74 (stating that mediators, as independent sources, can offer information to both disputants in a joint search for truth). Even opponents of evaluative mediation recognize that mediators can, in unbiased ways, provide information designed to help parties make an intelligent choice. See e.g., Feerick et al., supra note 148, at 107-08 (commenting that the principle of informed consent may require the mediator to explore whether the parties have considered the risk of litigation and have evaluated the positions asserted). For example, a mediator might simply provide each party with a copy of a relevant statute prior to the mediation. Id. at 108 (commenting that key information provided in advance promotes informal self-determination).
246. See Currie, supra note 81, at 74 (stating that mediators, as independent sources, can offer information to both disputants in a joint search for truth). Even opponents of evaluative mediation recognize that mediators can, in unbiased ways, provide information designed to help parties make an intelligent choice. See e.g., Feerick et al., supra note 148, at 107-08 (commenting that the principle of informed consent may require the mediator to explore whether the parties have considered the risk of litigation and have evaluated the positions asserted). For example, a mediator might simply provide each party with a copy of a relevant statute prior to the mediation. Id. at 108 (commenting that key information provided in advance promotes informal self-determination).
247. See Currie, supra note 81, at 74 (stating that mediators, as independent sources, can offer information to both disputants in a joint search for truth). Even opponents of evaluative mediation recognize that mediators can, in unbiased ways, provide information designed to help parties make an intelligent choice. See e.g., Feerick et al., supra note 148, at 107-08 (commenting that the principle of informed consent may require the mediator to explore whether the parties have considered the risk of litigation and have evaluated the positions asserted). For example, a mediator might simply provide each party with a copy of a relevant statute prior to the mediation. Id. at 108 (commenting that key information provided in advance promotes informal self-determination).
248. As one commentator puts it: Mediators have an ethical duty, of course, to be impartial. However, as Josh Stulberg has written, impartiality means "treat[ing] all parties in the same ways, both procedurally and substantively." [Citation omitted.] To my mind, the mediator who provides the parties the same access to legal information and advice - without favoritism or bias, and without regard for the potential effect of the information on the prospects for settlement - is being impartial, in the truest sense of the word. James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from an Evaluative Lawyer Mediator, 38 S. TEX. L. REV. 769, 796 (1997).
249. Christopher W. Moore identifies twelve different ways that mediators' judgments affect the outcome of mediations. See MOORE, supra note 67, at 327-33 and accompanying text. He writes: In every dispute the mediator exerts a specific degree of control over the sequence of negotiation and problem-solving steps and the management of individual agenda items. He or she must choose - on the basis of the situation, the parties, and the issues in dispute - whether to have limited influence and make few procedural suggestions (either general or specific); to be moderately influential and provide some structure; or to be highly influential, with much directiveness and a highly detailed procedure over which the parties have a low degree of control. Id. at 327-28.
250. Christopher W. Moore identifies twelve different ways that mediators' judgments affect the outcome of mediations. See MOORE, supra note 67, at 327-33 and accompanying text. He writes: In every dispute the mediator exerts a specific degree of control over the sequence of negotiation and problem-solving steps and the management of individual agenda items. He or she must choose - on the basis of the situation, the parties, and the issues in dispute - whether to have limited influence and make few procedural suggestions (either general or specific); to be moderately influential and provide some structure; or to be highly influential, with much directiveness and a highly detailed procedure over which the parties have a low degree of control. Id. at 327-28.
251. See Feerick et al., supra note 148, at 108 (observing that in California, the American Arbitration Association advises parties in mediation to consult information about relevant law).
252. Some argue that the best way to preserve mediator neutrality is for mediators to always advise the parties to consult legal counsel and to rely on the parties to get the legal information they need from their legal advocates. See e.g. Feerick et al., supra note 148, at 106-08 (commenting that advising parties to consult legal counsel does not violate the principle of mediator neutrality).
253. 42 U.S.C.A. § 1395cc(f)(1) (requiring that healthcare providers "maintain written policies and procedures with respect to all adult individuals receiving medical care by or through the provider or organization . . .").
254. 42 U.S.C.A. § 1395cc(f)(1)(A)(i).
255. See Hoffmann, supra note 6, at 866.
256. See Orentlicher, supra note 52 and accompanying text.
257. See Hoffmann, supra note 8, at 776 ("[T]here are reasons to be cautious about delegating authority to family members to make decisions involving withholding or withdrawal of life support.").
258. See id. (remarking that family members may (1) face financial and emotional burdens; (2) make decisions out of their emotional needs; or (3) be called upon to deal with patients whom they were not closely acquainted).
259. See Orentlicher, supra note 52 and accompanying text.
260. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
261. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
262. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
263. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 -449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
264. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
265. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 -2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
266. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
267. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
268. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
269. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
270. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
271. See e.g., CAL. HEALTH AND SAFETY CODE, §§ 7185 to 7194.5 (West 1999); ME. REV. STAT. ANN. tit. 18-A § 5-805(b) (West 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); MONT. CODE ANN. § 50-9-101 - 50-9-206 (1997) (enumerating in order of priority the family members that may act as surrogates in EOLT situations); NEV. REV. STAT. § 449.535 - 449.690 (1997) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); N. M. STAT. ANN. § 24-7A-5 (Michie 1996) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OHIO REV. CODE ANN. §§ 2133.01 - 2133.15 (Anderson 1998) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); OKLA. STAT. ANN. tit. 63 §§ 3101.1 to 3101.16 (West 1997) (allowing the patient to designate any adult of sound mind as a decision-maker); WASH. REV. CODE ANN. § 7.70.065 (West 1992) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); V. I. CODE ANN. tit. 19, §§ 185 - 200 (1995) (enumerating in order of priority the family who, as surrogates, may make EOLT decisions for incapacitated patients). See also, UNIFORM HEALTH-CARE DECISIONS ACT § 5(b) (1993) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 7(b) (1989) (enumerating in order of priority the family members who, as surrogates, may make EOLT decisions for incapacitated patients); Orentlicher, supra note 52, at 1263 (noting that physicians routinely rely on family members of incapacitated patients to make treatment decisions for the patient).
272. See e.g., Martin v. Martin, 538 N.W.2d 399, 405-06 (Mich. 1995) (establishing that a patient's decision to refuse medical treatment survives the patient's subsequent incompetence); COLO. REV. STAT. § 15-14-506(2) (1998) (legislating that an agent shall act in accordance with the known wishes of the principal). See also 1 ALAN MEISEL, THE RIGHT TO DIE § 7.2, at 345-46 (2d ed. 1995) (asserting that the overriding goal of decisionmaking for incompetent patients is the effectuation of the patient's right to self-determination).
273. See e.g., Martin v. Martin, 538 N.W.2d 399, 405-06 (Mich. 1995) (establishing that a patient's decision to refuse medical treatment survives the patient's subsequent incompetence); COLO. REV. STAT. § 15-14-506(2) (1998) (legislating that an agent shall act in accordance with the known wishes of the principal). See also 1 ALAN MEISEL, THE RIGHT TO DIE § 7.2, at 345-46 (2d ed. 1995) (asserting that the overriding goal of decisionmaking for incompetent patients is the effectuation of the patient's right to self-determination).
274. See e.g., Martin v. Martin, 538 N.W.2d 399, 405-06 (Mich. 1995) (establishing that a patient's decision to refuse medical treatment survives the patient's subsequent incompetence); COLO. REV. STAT. § 15-14-506(2) (1998) (legislating that an agent shall act in accordance with the known wishes of the principal). See also 1 ALAN MEISEL, THE RIGHT TO DIE § 7.2, at 345-46 (2d ed. 1995) (asserting that the overriding goal of decisionmaking for incompetent patients is the effectuation of the patient's right to self-determination).
275. See NEV. REV. STAT. §§ 449.535 - 449.690 (1997) ("A decision to grant or withhold consent must be made in good faith. A consent is not valid if it conflicts with the expressed intention of the patient.").
276. See Hoffmann, supra, note 6, at 866 (explaining a case in which a patient's spouse, acting on religious beliefs, argues that all life is worth maintaining, while the healthcare provider believes it futile to maintain patient in a persistent vegetative state).
277. See notes 104-08 and accompanying text.
278. See BUCKMAN, supra note 108.
279. See note 109 and accompanying text.
280. See LaBaron & Carstarphen, supra note 90.
281. See id.
282. See Wolf, supra note 116, at 805 ("Most of these [ethics committees] accord nothing resembling due process."). See also Wilson, supra note 9, at 404-05 (discussing lack of procedural safeguards and need for courts to assume a greater role).
283. See Wolf, supra note 116, at 805 ("Most of these [ethics committees] accord nothing resembling due process."). See also Wilson, supra note 9, at 404-05 (discussing lack of procedural safeguards and need for courts to assume a greater role).
284. See supra notes 113-21 and accompanying text.
285. 42 U.S.C. 1395bb(a)(1) (West 1992) ("[I]f . . . an institution is accredited as a hospital by the Joint Commission on Accreditation of Hospitals . . . , then, such institution shall be deemed to meet the requirements of the numbered paragraphs of section 1395x(e) of this title . . . .").
286. Joint Commission on Accreditation of Healthcare Organizations, 1995 Manual for Hospitals 66 (1995) (standard RI.1) (requires a "functioning process to address ethical issues" as a condition of accreditation and provides that "[p]atient rights mechanisms may include a variety of implementation strategies; for example, established ethics committees, the use of a formalized ethics forum, ethics consultations, of any combination of these or other methods").
287. Id.
288. See ARIZ. REV. STAT. § 36-2284(F) (West 1993)(stating that members of infant care review committees are immune from civil and criminal liability for any "recommendations" made as a member of the committee); ARIZ. REV. STAT. § 36-3231(B) and (C) (concluding that any person who makes a good faith medical decision for an incapacitated patient with which an ethics committee concurs is immune from civil and criminal liability; an "ethics committee" is defined as a committee that "render[s] advice concerning ethical issues involving medical treatment").
289. See ARIZ. REV. STAT. § 36-2284(F) (West 1993)(stating that members of infant care review committees are immune from civil and criminal liability for any "recommendations" made as a member of the committee); ARIZ. REV. STAT. § 36-3231(B) and (C) (concluding that any person who makes a good faith medical decision for an incapacitated patient with which an ethics committee concurs is immune from civil and criminal liability; an "ethics committee" is defined as a committee that "render[s] advice concerning ethical issues involving medical treatment").
290. See HAWAII REV. STAT. ANN. § 663-1.7 (Michie 1995) (stating that members of ethics committees are immune from civil or criminal liability for conduct in furtherance of the purpose for which the committee was established, including "mak[ing] decisions" about life-sustaining medical treatment).
291. See MD. CODE, HEALTH-GEN. II § 19-374 (Michie 1996) (requiring immunity from criminal and civil liability for members of patient care advisory committees who give "advice" concerning the treatment of patients with life-threatening conditions).
292. See MONT. CODE ANN. § 37-2-201 (1997) (stating that members of ethics committees are immune from civil and criminal liability for "recommendations" made as a committee member).
293. See supra note 176 (emphasis added).
294. See supra notes 113-21 and the accompanying text.
295. If the conduct of physicians in the face of safe harbor laws is any indication of how ethics committees in health care institutions will respond to statutory promises of immunity, then they will do what is necessary to qualify for the immunity. Empirical evidence supports the claim that physicians respond to safe harbor laws by conforming their behavior to that which is required in order to receive the protection from liability promised under the law. See Wilson, supra note 9, at 395 (observing that immunity "may compel caretakers to follow misguided committee recommendations in order to receive protection" and providing empirical support for the claim).
296. See supra text accompanying note 69.
297. See N.Y. PUB. HEALTH § 2972 (McKinney 1993).