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The Empire of Death: How Culture and Economics Affect Informed Consent in the U.S., the U.K., and Japan

Published online by Cambridge University Press:  24 February 2021

George J. Annas  and
Frances H. Miller
George J. Annas
Affiliation:
Boston University Schools of Law, Medicine, and Public Health; Law, Medicine & Ethics Program, Boston University
Frances H. Miller
Affiliation:
Boston University School of Law and Boston University School of Public Health
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Extract

American culture reflects a paradox: the more openly we discuss death and its inevitability, the more money we spend to postpone and deny it. Sherwin Nuland's book How We Die, a frank description of the way our bodies deteriorate with and without medical intervention, topped the New York Times best seller list in the spring of 1994. At the same time, Jack Kevorkian, arguably the world 's best known physician, was being acquitted of violating Michigan 's law against assisted suicide, while a Michigan commission was debating legislative changes to permit physicians to help their terminally ill patients kill themselves. Despite such open discussion of death and expansion of the informed consent doctrine, U.S. medical expenditures at the end of life remain astronomically high. Most of this elevated spending is attributable to new medical technology.

In J.G. Ballard 's Empire of the Sun, the United States, British and Japanese cultures are contrasted through the eyes of a young British boy incarcerated by the Japanese army in China during World War II.

Type
Articles
Information
American Journal of Law & Medicine , Volume 20 , Issue 4: Symposium Dedicated to Joseph “Jay” Healey , 1994 , pp. 357 - 394
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1994

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Footnotes

Troyen Brennan, Peter Davis, Leonard Glantz, Dean Hashimoto, David Hughes, Wendy Mariner, Naoko Miyaji, and the members of the University of Texas and Boston University Law Schools' faculty colloquia made valuable comments on earlier drafts.

References

1 Sherwin nuland, how we die (1993).

2 See generally A.A. Scitovsky, “The High Cost of Dying” Revisited, 72 Milbank Q. 561 (1994); A.A. Scitovsky, The High Cost of Dying: What do the Data Show?, 62 Milbank Q. 591 (1984).

3 J.G. Ballard, Empire of the Sun (1984).

4 Dennis A., Foster, J.G. Ballard's Empire of the Senses: Perversion and the Failure of Authority, 108 Publications Mod. Language Ass&Apos;N Am. 519, 527 (1993).Google Scholar

5 Id. at 528.

6 See George J. Annas, Reframing the Debate on Health Care Reform by Replacing Our Metaphors, 332 New Eng. J. Med. 744 (1995); Susan Sontag, Illness as A Metaphor, 57 (1978); Susan Sontag, Aids and its Metaphors (1989).

7 See, e.g., Paul Starr, the Social Transformation of American Medicine 445 (1982). Cf. Lawrence J. Schneiderman et al., Medical Futility: Its Meaning and Ethical Implications, 112 Annals Internal Med. 949, 953 (1990) (patient autonomy has highest value in hierarchy of principles of medical ethics).

8 See, e.g., Troyen Brennan, just Doctoring, Medical Ethics in the Liberal State (1991); Symposium, The “Oregon Plan”, 1 Health Matrix 135 (1991); H. Denman Scott et al., Universal Insurance for American Health Care: A Proposal of the American College of Physicians, Annals Internal Med. 511 (1992). See also Symposium, Managed Competition: Health Reform American Style?, Health Aff., Supp. 1993.

9 The term rationing is used in this article in its popular sense to denote care which could conceivably confer medical benefit, but which is withheld for economic rather than clinical reasons. In fact, the U.S. has always rationed health services, but we do so by relegating the uninsured to the margins of health care delivery systems, rather than by withholding specific services from insureds. Cf. Norman Daniels, Just Health Care (1985) (past experience makes it easier for us to tolerate excessive services than to limit providing them).

10 See, e.g., Harris v. McRae, 448 U.S. 297 (1980) (Stevens, J., dissenting): There are some especially costly forms of treatment that may reasonably be excluded from the [Medicaid] program in order to preserve the assets in the pool and extend its benefits to the maximum number of needy persons. Fiscal considerations may compel certain difficult choices in order to improve the protection afforded to the entire benefited class. Id. at 355. Cf. Julia Field Costich, Note, Denial of Coverage for “Experimental” Medical Procedures: The Problem of De Novo Review Under Erisa, 79 KY. L.J. 801 (1990-91).

11 For example, patient treatment choices vary when the same information is presented in terms of probability of death, rather than possibility of survival. Barbara J. McNeil et al., On the Elicitation of Preferences for Alternative Therapies, 306 New Eng. J. Med. 1259 (1982).

12 This article will not directly examine the ramifications of informing patients when the financial or technical resources required to provide treatment that might benefit them are unavailable, but see generally, Mark Hall, Informed Consent to Rationing Decisions, 71 Milbank Q. 645 (1993); Frances H. Miller, Denial of Care and Informed Consent in English and American Law, 18 Am. J.L. & Med. 37 (1992).

13 On recent health sector reorganization in the U.K., see Patricia Day & Rudolf Klein, Britain's Health Care Experiment, Health Aff., Fall 1991, at 39.

14 On health sector organization in Japan, see MIlton I. Roemer, National Health Systems of the World, Vol. 1: the Countries 153-61 (1991). See also, John K. Iglehart, Japan's Medical Care System (pts. 1 & 2), 319 New Eno. J. Med. 807, 1166 (1988); Naoki Ikegami, Japanese Health Care: Low Costs Through Regulated Fees, 10 Health Aff. 87 (1991); Aki Yoshikawa, et al., How Does Japan Do It? Doctors and Hospitals in a Universal Health Care System, Stan. L.& Pol'y Rev., Fall 1991, at 111.

15 Lynn Payer, Medicine & Culture (1988) [hereinafter Medicine & Culture]; cf. the Relevance of Social Science for Medicine (Leon Eisenberg & Arthur Kleinman eds., 1981); E. Phelps, Diffusion of Information in Medical Care, J. Econ. Persp., Summer 1992, at 23.

16 German patients have been entitled to six-week insurance-paid stays at health spas every three years. Richard A. Knox, Germany's Health Care: A Model, Boston Globe, October 25, 1992, at 71, 73. German health reforms recently eliminated spa coverage, however. Health Budget Using European Models Promising for United States, ProPAC Told, Pens. & Ben. Daily (BNA), April 14, 1993. For a general description of the German system, see Michael Arnold, Health Care in the Federal Republic of Germany (1991).

17 Medicine & Culture, supra note 15, at 96, reports neurosis as the leading diagnosis by British GPs. Neurosis was not even mentioned in the top twenty diagnoses in Germany for the same time period, presumably stemming from German cultural hostility to psychiatry.

18 A.M.W. Porter, Three Threats to Standards of Medical Practice, 1 Lancet 1071, 1071 (interviews with French and British doctors reveal that they rarely read each others' medical journals). British doctors tend to be empiricists distrustful of theory per se, while French doctors are trained as Cartesian thinkers, tending to dismiss empiricism as riskily anecdotal. See Medicine & Culture, supra note 15, at 37-44.

19 See Lynn Payer, Disease Mongers: how Doctors, Drug Companies, and Insurers Are Making you Feel Sick 1-100 (1992) (how the U.S. “creates” disease).

20 See, e.g., Lawrence K. Altman, U.S. Seeks Attack on Hypertension, N.Y. Times, October 31, 1992, at 5.

21 Medicine &Culture, supra note 15, at 25 (“low blood pressure [is] treated with eighty-five drugs as well as hydrotherapy and spa treatments in Germany”).

22 See James M., Robbins et al., Treatment for a Nondisease: The Case of Low Blood Pressure, 16 Soc Sci.& Med. 27 (1982).Google Scholar

23 In the U.K. for example, thermometers are calibrated to show 96.4° as normal body temperature. Cf., Should Physicians Abandon 98.6° as a Standard of Normal Body Temperature?, Internal Med. World Rep., October 15-31 1992, at 1.

24 David M., Eddy, Variations in Physician Practice: The Role of Uncertainty, Health Aff., Summer 1984, at 74. Cf, Franz Inglefinger, Arrogance, 303 New Eng. J. Med. 1507 (1980).Google Scholar

25 For example, the Gallic ideal of the (slim) feminine form prompts French plastic surgeons to counsel breast reduction for the same patients who could—at least until the recent controversy over silicone implant safety—be plausible candidates for breast augmentation in the U.S.’s more curvaceously inclined cultural milieu. Cf. Fashion World Should Look at Real Women; the Surgeon’s Version, N.Y. Times, Feb. 26, 1992, at A20; Robert M. Veatch, Consensus of Expertise: The Role of Consensus of Experts in Formulating Public Policy and Estimating Facts, 16 J. Med. & Phil. 427 (1991) (values of medical experts differ from values of lay people). See generally Medicine & Culture, supra note 15; Klim McPherson, International Differences in Medical Care Practices, in Oecd Social Policy Studies no. 7, Health Care Systems in Transition: the Search for Efficiency 17 (Organization for Economic Co-Operation and Development ed., 1990).

26 Arthur Kleinman, Patients and Healers in the Context of Culture, (1980). Cf. Nancy Scheper-Hughes, Social Indifference to Child Death, 337 Lancet 1144, 1145 (1991) (“Parents and public officials throughout the world have often failed to see infant and child [illness or] death as either a personal tragedy or an important social issue.”).

27 In re Osborne, 294 A.2d 372 (D.C. 1972) (competent patient may refuse life-saving blood transfusion where no compelling state interest involved); cf. In re President & Directors of Georgetown College, 331 F.2d 1000, 1008 (D.C. Cir. 1964) (blood transfusion ordered despite patient’s religious refusal to consent, because “[t]he state, as parens patriae, will not allow a parent to abandon a [seven month-old] child ….”).

28 Winters v. Miller, 446 F.2d 65 (2d Cir. 1971) (Christian Scientist mental patient challenged forced administration of tranquilizers, citing constitutionally protected religious beliefs).

29 Cf. Roemer, supra note 14, at 90.

30 Mary Douglas, Risk Acceptability and Social Sciences (1985).

31 Kerr L. White, Foreword to Medicine & Culture, supra note 15, at 10, 11; Rudolf Klein, Rationing Health Care, 289 Brit. Med. J. 143, 144 (1984) (“America is a perfectibility of man society in which illness and debility are seen as challenges to action and patients tend to be demanding consumers.”).

32 Medicine & Culture, supra note 15.

33 “How could a people which … has contrived the Bowie knife and the revolver …which insists in sending out yachts and horses and boys to outsail, outrun, outfight and checkmate all the rest of creation; how could such a people be content with any but ’heroic’ practice? What wonder that the stars and stripes wave over doses of ninety grains of sulfate of quinine and that the American eagle screams with delight to see three drachms of calomel [a potent purge] given at a single mouthful?” 9 Oliver Wendell Holmes, the Writings of Oliver Wendell Holmes, Medical Essays (1888), quoted in Medicine & Culture, supra note 15, at 127.

34 Luioi Barzini, the Europeans 239 (1983).

35 Starr, supra note 7, at 434; Henry J. Aaron & William B. Schwartz, the PAinful Prescription: Rationing Hospital Care 4 (1984).

36 For general background, see generally Bruno Latour & Steve Wooloar, Laboratory Life: the Construction of Scientific Facts (1979); John B. McKinley, From “Promising Report“ to “Standard Medical Procedure“: Seven Stages in the Career of a Medical Innovation, 59 Milbank Q. 374 (1981); Michael Walzer, Spheres of Justice 86-91 (1983). Moreover, many Americans may be beginning to perceive that cost containment is the price they must pay for broader—or even continued—access to health insurance coverage.

37 Daniel, Callahan, The Oregon Initiative: Ethics and Priority Setting, 1 Health Matrix 157 (1991);Google Scholar Leslie Pickering Francis, Consumer Expectations and Access to Health Care, 140 U. Pa. L. Rev. 1881 (1992); Michael J. Garland, Setting Health Care Priorities in Oregon, 1 Health Matrix 139 (1991); David C. Hadorn, The Problem of Discrimination in Health Care Priority Setting, 268 JAMA 1454 (1992); Paul T. Menzel, Consumer Expectations and Access to Health Care: A Commentary, 140 U. Pa. L. Rev. 1919 (1992).

38 Scott et al., supra note 8, at 511.

39 Bill Clinton, The Clinton Health Care Plan, 327 New Eno. J. Med. 804, 805, (1992).

40 The U.K. General Medical Council’s principles of professional conduct state, “a specialist should not usually accept a patient without reference from the patient’s general practitioner.” (UK) General Medical Council, Professional Conduct and Discipline: Fitness TO Practice 22 (1991). For a description of the NHS internal market reforms initiated in 1991, see Frances H. Miller, Competition Law and Anticompetitive Professional Behavior Affecting Health Care, 55 Mod. L. Rev. 453, 460 (1992).

41 John Fay, The Mouse and the Elephant: Can Primary Care Save the U.S. Health System?, 340 Lancet 594 (1992).

42 Pratt v. Davis, 118 111. App. 161, 166 (1905), affd, 244 111. 30, 79 N.E. 562 (1906).

43 Not so coincidentally, the Medicare and Medicaid programs, initiated pursuant to the Social Security Act of 1965, Pub. L. No. 89-97, 79 Stat. 286 (1965) (codified as amended at 42 U.S.C §§ 1395-1396v (1988 & Supp. V 1993)), made the issue of choice meaningful to a large segment of the population which previously had limited access to health services.

44 Presidentrsquo;S Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 2-3 (1982).

45 Id. See also George J. Annas, the Rights of Patients 83-85 (2d ed. 1989).

46 502 P.2d 1 (Cal. 1972). The other candidate for leading U.S. case is Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). We prefer Cobbs because the California courts have continued to refine it.

47 In supporting the patient’s right to decision-making authority, the court noted the patient’s “abject dependence“ on the doctor for medical information. This dependency, coupled with the trust the patient must have in their doctors, generated the physician’s duty to disclose. Cobbs, 502 P.2d at 9. The hospital settled, but the case against physician was never retried because the plaintiff’s lawyer believed that his client could not meet the objective “reasonable person” causation standard. The court also used the concept of materiality to identify the information that physicians must disclose; material information is that which might lead a reasonable person to reject the recommended therapy (and opt for an alternative or no treatment at all). The California Supreme Court specifically required the following pieces of information to be disclosed (others would be added later): a description of the proposed procedure, its risks (of death and bodily harm) and benefits (including probability of success), alternative treatments (including no treatment) with their risks and benefits, and problems associated with recuperation. Id. at 10-11.

48 Since 1972 the California Supreme Court has also required physicians to inform patients of the risks of refusing screening tests such as Pap smears. Truman v. Thomas, 611 P.2d 902 (Cal. 1980). It has also mandated that doctors inform patients about potential financial conflicts of interest which might influence them to make recommendations influenced by personal reasons unrelated to their patients’ best interests. Moore v. Regents of Univ. of Cal., 793 P.2d 479 (Cal. 1990).

49 858 P.2d 598 (Cal. 1993).

50 At trial it was shown that at the first meeting with his oncologist, Mr. Arato had filled out an eighteen-page questionnaire in which he answered “yes” to the question: “If you are seriously ill now or in the future, do you want to be told the truth about it?” The physicians who treated Mr. Arato justified their nondisclosure of the statistical prognosis on a variety of grounds, most based on traditional medical paternalism. His surgeon, for example, thought Mr. Arato had shown such great anxiety about his cancer that it was “medically inappropriate” to disclose specific mortality rates. The chief oncologist said he understood that patients like Mr. Arato “wanted to be told, but did not want a cold shower.” He thought that reporting extremely high mortality rates might “deprive a patient of any hope of a cure,” and that this was medically inadvisable. His physicians also said that during his seventy visits with them over a one-year period, Mr. Arato had avoided ever specifically asking about his own life expectancy and that this indicated that he did not want to know the information. In addition, all the physicians testified that the statistical life expectancy of a group of patients had little predictive value when applied to a particular patient. See, George J. Annas, Informed Consent, Cancer, and Truth in Prognosis, 330 NEW ENG. J. Med. 223 (1994).

51 The physicians measured success in terms of added months of survival . Arato v. Avedon, 11 Cal. Rptr. 2d 169, 172 (Cal. Ct. App. 1992).

52 The instructions read by the trial judge stated: Except as hereinafter explained, it is the duty of the physician to disclose to the patient all material information to enable the patient to make an informed decision regarding proposed treatment.

Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one which is not commonly appreciated.

A physician has no duty of disclosure beyond that required of physicians of good standing in the same or similar locality when he or she relied upon facts which would demonstrate to a reasonable person that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended treatment.

Even though the patient has consented to a proposed treatment or operation, the failure of the physician to inform the patient as stated in this instruction before obtaining such consent is negligence and renders the physician subject to liability for any damage legally resulting from the failure to disclose or for any injury legally resulting from the treatment if a reasonably prudent person in the patient’s position would not have consented to the treatment if he or she had been adequately informed of the likelihood of his [sic] premature death. Arato, 858 P.2d at 602 n.3.

53 Arato, 11 Cal. Rptr. 2d at 169.

54 Arato, 858 P.2d at 598.

55 Perhaps most important, the court described this case as one that was “fairly litigated” and properly put in the hands of “the venerable American jury,” which had rendered a reasonable verdict that it was not prepared to second-guess. The court concluded:

Rather than mandate the disclosure of specific information as a matter of law, the better rule is to instruct the jury that a physician is under a legal duty to disclose to the patient all material information—that is, “information which … would be regarding as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure“—needed to make an informed decision regarding a proposed treatment.

Id. at 607. The patient's desire to be told the truth, as evidenced by his answer on the questionnaire, was found to be irrelevant, since the physician has an independent legal duty to tell the “truth” (although a patient can waive the right to information). The court also dealt with the issue of expert testimony, noting that in addition to the information required to be disclosed by Cobbs (the nature and benefits of the proposed treatment, its risks of death or serious harm, reasonable alternatives and their risks, and problems of recuperation), physicians must also disclose any other information which another skilled practitioner would disclose. The court ruled that specific data on life expectancy fell within this standard. Thus, the defendant physicians were properly permitted to call expert medical witnesses to testify that it was not standard practice in the medical community in 1980 to disclose specific life-expectancy data.

56 Alexander M. Capron, Duty, Truth and Whole Human Beings, Hastings Ctr. Rep., Aug. 1993, at 13-14. See also, Anatole Broyard, Intoxicated by my Illness (1992); Peter Noll, in the Face of Death (1989).

57 Cobbs v. Grant, 502 P.2d 1, 10 (Cal. 1972).

58 See Peter A. Singer & Frederick H. Lowy, Rationing, Patient Preferences, and Cost Care at the End of Life, 152 Archives Internal Med. 478 (1992); Ezekiel J. Emanuel &Linda L. Emanuel, The Economics of Dying —The Illusion of Cost Savings at the End of Life, 330 New Eng. J. Med. 540 (1994).

59 42 U.S.C. § 1395cc (f)(l)(A)(i) (Supp. V 1993).

60 George J. Annas, The Health Care Proxy and the Living Will, 324 New Eng. J. Med. 1210 (1991).

61 Id.

62 Cf. Renee C. Fox & Judith P. Swazey, Spare Parts 208 (1992). One of the most urgent value questions is whether, as poverty, homelessness, and lack of access to health care increase in our affluent country, it is justifiable for rAmerican society to be devoting so much of its intellectual energy and human and financial resources to the replacement of human organs. Id.

63 Dept. of Public Health, Commonwealth of Massachusetts, Report of the Massachusetts Task Force on Organ Transplantation (Oct. 1984) (George J. Annas, Chairman, Oct. 1984).

64 Id. at 83.

65 See generally Paula Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L. REV. 201 (1994).

66 See, e.g., Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992) (plurality opinion).

67 See Pub. Act 81-1078, § 3.5(2), 1979 111. Laws 4108, 4115 (repealed 1984) which required doctors performing abortions to hand patients the following written statement: “The State of Illinois wants you to know that in its view the child you are carrying is a living human being whose life should be preserved. Illinois strongly encourages you not to have an abortion but to go through to childbirth.”

68 Jay Katz, the Silent World of Doctor and Patient (1984).

69 Kenneth Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 Am. Econ. Rev. 941 (1963). See also Stanley J. Reiser, Consumer Competence and the Reform of American Health Care, 267 JAMA 1511 (1992) (physicians and managers make most health care decisions; consumer competence must be developed to bring about a consumerdetermined health care system).

70 Arnold Relman, The New Medical-Industrial Complex, 303 New Eng. J. Med. 963, 966 (1980).

71 McNeil et al., supra note 11, at 1261.

72 Michael Meier, These Economic Experts Advocate Higher Taxes, Star Tribune, Jan. 7 1995, at 1.

73 Thomas Graboys et al., Results of a Second Opinion Trial Among Patients Recommended for Coronary Angiography, 268 JAMA 2537, 2537 (1992).

74 Lawrence K. Altman, Study Sees Excess in X-Rays, N.Y. Times, Nov. 11, 1992, at 16. See generally Arnold S. Relman, Self-Referral—What's at Stake?, 327 New Eng. J. Med. 1522 (1992).

75 See generally Rudolph Klein, the Politics of the NHS (2d ed. 1989). For a summary of informed consent rules in European countries, see Kenk Leenen et al., the Rights of Patients in Europe (1993).

76 Sidaway v. Bethlem Royal Hosp. Governors, 1 All E.R. 643, 646 (1985).

77 Bolam v. Friern Hosp. Management Coram., 1 W.L.R. 582, 582 (1957).

78 Sidaway, 1 All ER at 657.

79 Id. at 666.

80 Id.

81 Id. at 663. As an example, Lord Bridge cited the Canadian case of Reibl v. Hughes, 114 D.L.R. 1 (1980), which involved a ten percent risk of stroke from an operation. He characterized this as “[a] substantial risk of grave consequences,” which “[i]n the absence of some cogent clinical reason why the patient should not be informed” would require disclosure. In addition, Lord Bridge noted that “when questioned specifically by a patient of apparently sound mind about risks involved in a particular proposed treatment, the doctor's duty must … be to answer both truthfully and as fully as the questioner requires.” Id. at 661.

82 Id. at 649. In Lord Scarman's view, the doctor's duty to disclose material risks “[a]rises from his patient's rights.” The duty in any case should depend upon “[t]he degree of probability of the risk materializing and the seriousness of possible injury if it does.” On the other hand, Lord Scarman held that the one percent risk of paralysis involved in Amy Sidaway's case was “slight.” It was sufficiently remote to require the plaintiff “[t]o establish that the risk was so great that the doctor should have appreciated that it would be considered a significant fact by a prudent patient … .” Since Mrs. Sidaway had not demonstrated this, Lord Scarman voted with the other four Law Lords to dismiss the appeal. Id. at 654-55

83 David W. Meyers, the Human Body and the Law 131 (2d ed. 1990).

84 Id.

85 [1988] Q.B. 481, 3 W.L.R. 649 (1987) (failed sterilization procedure where alternative forms of contraception were not disclosed). See also Andrew Grubb, Contraceptive Advice and Doctors —A Law Unto Themselves?, 47 Cambridge L.J. 12 (1988).

86 Dieter Giesen & John Hayes, The Patient's Right to Know —A Comparative View, 21 Anglo-Am. L. Rev. 101, 106 (1992).

87 Cf. Julia Neuberger, Ethics and Health Care: the Role of Research Ethics Committees in the United Kingdom (1992).

88 Sarah Boston & Jill Louw, Disorderly Breasts 31 (1987). More recently, Professor Baum has suggested a new way to conduct randomized clinical trials (RCTs) of treatment for “ladylike cancers.” In his words, “Since women, unlike men, enjoy a natural generosity of spirit, it should not be too difficult to establish an organization of women, committed to fight cancer on all fronts … . If we were to establish a Europe-wide organization with a membership of a million women over the age of 35, 1 in 1,000 of these will get breast cancer each year, about 1 in 2,000 will get ovarian cancer, and one in 4,000 cervical cancer.” In Professor Baum's scheme, all one million women will have been kept informed of ongoing cancer research, “and thus they will not only expect to be offered entry into a controlled trial, but perhaps even demand it.” Most important is Baum's continuing view that informed consent is a “charade,” and that his plan (which rests on the unlikely proposition that both arms of all RCTs of female cancer are always better than currently accepted treatment) will advance science and let women fulfill their moral (if uninformed, or misinformed) obligation to take part in his research. Michael Baum, New Approach for Recruitment into Randomised Controlled Trials, 341 Lancet 812, 813 (1993).

89 Id. Cf. Thurstan Brewin, Truth, Trust and Paternalism, 2 Lancet 490 (1985).

90 Cf. Clive Seale, Communication and Awareness About Death: A Study of a Random Sample of Dying People, 32 Soc. Sci. Med. 943 (1991).

91 Bostow & Louw, supra note 88, at 32.

92 National Health Service management documents (1990) (issued by the Department of Health).

93 Christopher Heneghan, Medicine and the Law: Consent to Medical Treatment, 337 Lancet 421 (1991) (emphasis added).

94 D.D. Kerrigan et al., Who's Afraid of Informed Consent?, 306 Brit. Med. J. 298 (1993).

95 See sources cited supra note 14.

96 See Naoki Ikegami, The Economics of Health Care in Japan, 258 Sci. 614 (1992) (describing the Japanese health care system). See also sources cited supra note 14.

97 Yukio Mishima, the Temple of Dawn 195 (1973) (emphasis added).

98 Hiroyuki Hattori et al., The Patient's Right to Information in Japan —Legal Rules and Doctor's Opinions, 32 Sci. Med. 1007, 1009 (1991) [hereinafter Patient's Right in Japan].

99 Id. at 1007.

100 Our description of this case is taken entirely from Norio Higuchi, The Patient's Right to Know of a Cancer Diagnosis: A Comparison of Japanese Paternalism and American Self-Determination, 31 Washburn L.J. 455, 458-61 (1992) (citing Judgment of May 29, 1989 (Makino v. The Red Cross Hospital), Chisai [Nagoya District Court], 1325 Hanji 103 (Japan)). See also Fred Hiatt, Japan Court Ruling Backs Doctors; Judge Says That Patients May Be Kept Ignorant of Their Illnesses, Wash. Post, May 30, 1989, at A9.

101 Higuchi, supra note 100, at 460 (quoting Makino). 461.

102 Id

103 Id. at 461

104 Id. at 462 (footnote omitted).

105 Id. at 463. Other commentators have not been so kind. See, e.g., Noritoshi Tanida, Patients’ Rights in Japan, 337 Lancet 242, 243 (1991).

106 See, e.g Ruth Benedict, the Chrysanthemum and the Sword (1946); Takeo Doi, the Anatomy of Dependence (1971). Takeo Doi is unimpressed by individualism in America, however. As he observes about American conformity, “even in a society in which individuals stand out, the appearance of real individuals is strangely absent.” Takeo Doi, the Anatomy of Self 57 (1985).

107 Rhito Kimura, In Japan, Parents Participate but Doctors Decide, Hastings Ctr. Rep., Aug. 1986, at 22, 23.

108 Stephan M. Salzberg, Japan's New Mental Health Law: More Light Shed on Dark Places?, 14 Int'l J.L. & Psychiatry 137, 153 (1991) (footnote omitted).

109 Id.

110 Tanida, supra note 105, at 1014.

111 See generally Naoki Ikegami, Japanese Health Care: Low Cost Through Regulated Fees, 10 Health Aff. 87 (1991).

112 M. Powell & M. Anesaki, Health Care in Japan (1990). See also Theodore R. Marmor, Japan: A Sobering Lesson, 14 Health Momt. Q. 10, 12 (1992).

113 Japan had about 200,000 physicians in 1988; doctors are permitted to run their own nineteen-bed or smaller clinics—anything larger is classified as a hospital. About 30 percent of all Japanese physicians, called Kaigyo-i, or clinic doctors, own their own clinics. Their monthly income is approximately four times higher than that of hospital-based doctors. Aki Yoshikawa et al., How Does Japan Do It? Doctors and Hospitals in a Universal Health Care System, 3 STAN. L. & Pol'y Rev. I l l, 124 (1991). See also Martatoshi Abe, Japan's Clinic Physicians and Their Behavior, 20 Soc. Sci. Med. 335 (1985).

114 Ikegami, supra note 111, at 89-90.

115 Id.; Marmor, supra note 112, at 10 (quoting a 1980 figure of 38 percent).

116 Eisenstadt, The Doctor's Margin, Forbes, Nov. 23, 1992, at 44. The Japanese are the largest per capita consumers of drugs in the world, at $1,668 per capita in 1989, as compared with $1,098 in the United States. Mitsuru Mabuchi, Doctor Criticizes Overdose of Ineffective Drugs in Japan, Japan Econ. Newswire, Aug. 1, 1990. See also Blaming Someone Else: Japan Needs Better Arrangements for Conducting Clinical Trials of New Therapeutic Drugs, 371 Nature 89 (1994).

117 A Shot in the Arm, Bus. Tokyo, April 1992, at 40. Japanese doctors like to prescribe Krestin to “treat” a variety of cancer-related symptoms in order to avoid telling terminal patients the difficult truth. Though harmless, the drug has never been proven effective, and the Japanese Ministry of Health and Welfare recently warned doctors to reduce the number of prescriptions they write. See also Nicholas Kristof, When Doctor Won't Tell Cancer Patient The Truth, N.Y. Times, Feb. 25, 1995, at 2.

118 See Ikegami, supra note 111.

119 See Kate Brown, Death and Access: Ethics in Cross-Cultural Health Care, in Choices and Conflict: Explorations in Health Care Ethics 85, 87 (E. Friedman ed. 1992); see also Kazumasa Hoshino, Legal Status of Brain Death in Japan: Why Many Japanese Do Not Accept “Brain Death” as a Definition of Death, 7 Bioethics 234 (1993). Terminating treatment in persistent vegetative states has only recently even been discussed. See Japanese Panel Backs ‘Death With Dignity', Am. Med. News, July 11, 1994, at 23.

120 Brown, supra note 119, at 85; Hoshino, supra note 119, at 234; Japanese Panel Backs ‘Death With Dignity', supra note 119, at 23.

121 N. Ianida, Patients’ Rights in Japan (letter), 337 Lancet 242 (1991); see Melvin Konner, Medicine at the Crossroads 3-27 (1993).

122 Ianida, supra note 121, at 242; see Konner, supra note 121, at 3-27.

123 Cf, L.J. Donaldson's description of consent in Re J, UK Court of Appeal (July 10, 1992), focusing on protection for the physician rather than for the patient.

124 See Aaron & Schwartz, supra note 35 at 16-17.

125 See, e.g., U.S. GEneral Accounting Office, GOA/HRD-92-9, Health Care Spending Control: the Experience of France, Germany and Japan (1991) [hereinafter Health Care Spending Control]; George J. Schieber & Jean-Pierre Poullier, International Health Spending and Utilization Trends, 7 Health Aff. 105 (1988).

126 See U.S. Dept. of Commerce, Statistical Abstract of the United States 1992, tbl. no. 1368, Health Expenditures—Selected Countries: 1980-1990 829 (1992). This is true whether one measures such expenditures in absolute terms, as a percentage of national GNP, or as a per capita expenditure. Id. Nor is it merely a fluke that the world's highest medical malpractice litigation rates, and its highest percentage of specialist physicians as compared with primary care doctors (family practitioners, internists and pediatricians), are found in the U.S. as well. Steven A. Schroeder, Physician Supply and the U.S. Medical Marketplace, 11 Health Aff. 235 (1992). Cf. Basil S. Markesinis, Litigation Mania in England, Germany and the USA: Are We So Very Different?, 49 Camb. L.J. 233 (1990).

127 Leslie M. Greenwald, Meaning in Numbers, Health Mgmt. Q. 6, 7, tbl. 1 (Third Quarter 1992).

128 Id. at 7, 9, tbl. 6.

129 Cf. Clark Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. Pa. L. Rev. 1755 (1992).

130 See generally Mark V., Pauly, Is Medical Care Different? Old Questions, New Answers, 13 J. Health Pol. Pol'y & L. 227, 233 (1988); Competition in the Health Sector, 1977 F. T. C. Conf. Proc.Google Scholar

131 Cathy J., Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 Wash. & Lee L. Rev. 379, 428 (1990).Google Scholar

132 Margaret A. Drickamer & Mark S. Lachs, Should Patients with Alzheimer's Disease be Told Their Diagnosis?, 326 New Eno. J. Med. 947 (1992). As diagnostic markers and therapy improve, doctors will be compelled to disclose painful information in order to secure informed consent for initiating therapy.

133 See Elizabeth G.Patterson, The Therapeutic Justification for Withholding Medical Information: What You Don't Know Can't Hurt You, or Can It?, 64 Neb. L. Rev. 721 (1985); Margaret A. Somerville, Therapeutic Privilege: Variation on the Theme of Informed Consent, 12 L. Med. & Health Care 4 (1984).

134 The government itself furnishes health care under Great Britain's National Health Service. In the U.S., where approximately 41 percent of medical services are governmentfunded, government provides some services directly through institutions such as Veterans Administration, city, state and county hospitals, etc.

135 See Kirk B., Johnson et al., A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims, 42 Vand. L. Rev. 1365, 1394–95 (1989);Google Scholar E., Haavi Morreim Cost Containment and the Standard of Medical Care, 75 Cal. L. Rev. 1719, 1731 (1987).Google Scholar But see George J. Annas, Standard of Care: the Law of American Bioethics 4 (1993) [hereinafter Standard of Care]. (“[A]ny medical treatment done primarily to protect the physician from potential lawsuits [rather than to benefit the patient], although sometimes legal, is by definition unethical.“).

136 Aaron & Schwartz, supra note 35, at 66.

137 See generally Frank A.Sloan et al., Cost, Quality and Access in Health Care: new Roles for Health Planning in a Competitive Environment (1988). Cf. David A. Grimes, Technology Follies: The Uncritical Acceptance of Medical Innovation, 269 JAMA 3030 (1993). There is little doubt, however, that supply in large measure determines demand in medical care. This helps explain the paradox that the more organs become available for kidney, liver, and heart transplants in the United States, the longer the waiting lines for these transplants have grown. George J. Annas, The Paradoxes of Organ Transplantation, 78 Am. J. Pub. Health 621 (1988).

138 See Robert G. Lee & Frances H. Miller, The Doctor's Changing Role in Allocating U.S. and British Medical Services, 18 L. Med. & Health Care 69 (1990); Robert Schwartz & Andrew Grubb, Why Britain Can't Afford Informed Consent, Hastings Ctr. Rep., Aug. 1985, at 19.

139 “The key to turning down the patient ‘is not to get eyeball to eyeball with him because if you do there is no way you can actually say no . ‘ “ Aaron & Schwartz, supra note 35, at 107(commenting on how British physicians cope with scarce medical resources).

140 Miller, supra note 12, at 56-57.

141 General Medical Council (Uk), Professional Conduct and Discipline: Fitness to Practice 22 (1991).

142 British Medical Association, Philosophy & Practice of Medical Ethics 73 (1988).

143 On the U.K., see Schwartz and Grubb, supra note 138, at 19 (commenting on Sidaway v. Royal Bethlem Hospital, [1985] 2 W.L.R 483). See generally Frances H. Miller, Informed Consent for the Man on the Clapham Omnibus: A British Cure for the “American Disease?”, 9 W. New Eno. L. Rev. 169 (1987).

144 Successful health sector competition requires informed medical service purchasers; patients—or their surrogate purchasers—must understand diagnosis probabilities, treatment alternatives, risks, and personal costs of all kinds before making choices about consuming services. Such information traditionally emanates from providers, whose position on treatment issues may be entirely patient-centered, but could also be compromised for reasons ranging from altruistic paternalism, to scientific elitism, to direct conflict of economic interest.

145 In the U.S., see Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v. Grant, 502 P.2d 1 (Cal. 1972). Although the states are more or less split on patient-centered versus physician-dominated standards of disclosure, the trend is toward a patient-centered standard. Even though tort reform legislation in some states has modified patient-centered standards of disclosure, cultural expectations push toward disclosure of more complete information than is required in other countries.

146 See James Sterngold, Japan's Health Care: Cradle, Grave and No Frills, N.Y. Times, Dec. 28, 1992, at Al.

147 Ikegami, supra note 111, at 614.

148 See Tanida, supra note 105, at 1014.

149 Providers have been deliberately omitted here, although their treatment recommendations give them a particularly powerful position in decision-making at the micro level, because they “sell” rather than buy medical services.

150 See Brian Abel-Smith, Cost Containment and New Priorities in the European Community, 70 Milbank Q. 393 (1992); Health Care Spending Control, supra note 125. However, European countries such as the Netherlands, which ensures residents virtually universal access to basic health services though a mix of mandatory and voluntary health insurance, are currently exploring reforms to increase health sector competition. Chris Ham et al., Health Check: Health Care Reforms in an International Context (1990); J. Van Londen, Netherlands: Rational Choices In Health Care, 340 Lancet 228 (1992).

151 National Health Service and Community Care Act, 1990, ch. 19 (Eng.).

152 Frances H., Miller, Competition Law and Anticompetitive Physician Behavior, 55 Mod. L. Rev. 453, 455–63 (1992).Google Scholar Sweden is also contemplating competition initiatives to improve state-provided medical services. Richard B. Saltman, Competition and Reform in the Swedish Health System, 64 Milbank Q. 597 (1990).

153 Paul, Cotton, Less is More and More is Less in Health Care: Proposals Offered in ‘92 Campaign, 268 JAMA 1635–39 (1992).Google Scholar Moreover, the state of Oregon has implemented overt rationing for its Medicaid patients, after the Clinton Administration waived Medicaid conditions of participation to enable Oregon to limit treatment for certain medical conditions.

154 P. B., Beeson, Changes in Medical Therapy During the Past Half Century, in MEDICINE 59, 79–99 (1980)Google Scholar (value of 60 percent of remedies in first edition of Cecil's Textbook of Medicine rated as harmful, dubious or merely symptomatic by the time the 14th edition was published; only 3 percent offered fully effective prevention or treatment by then-current standards).

155 Klein, supra note 75, at 67-68; see also, Standard of Care, supra note 135.

156 Lawrence H. Thompson, Observations on “Cost Containment and New Priorities in the European Community” by Brian Abel-Smith, 70 Milbank Q. 417 (1992).

157 Richard E. Leahy, Rational Health Policy and the Legal Standard of Care: A Call for Judicial Deference to Medical Practice Guidelines, 77 Cal. L. Rev. 1483, 1484 (1989).

158 For a detailed look at U.S. financial incentives, see Steven R. Eastaugh, Health Care Finance: Economic Incentives and Productivity Enhancement (1992).

159 See generally Symposium, Rationing Health Care: Social, Political and Legal Perspectives, 18 Am. J. L. & Med. 1 (1992); Symposium, The Law and Policy of Health Care Rationing: Models and Accountability, 140 U. Pa. L. Rev. 1505 (1992).

160 In the U.S., the practice guidelines and total quality improvement initiatives have sensitized many health professionals and policy makers to the broad range of physician treatment preferences parading under the banner of customary practice. See generally Peter G. Goldschmidt, Can Practice Guidelines Reduce Malpractice Claims?, 267 JAMA 2602 (1992); Leahy, supra note 157; Morreim, supra note 135, at 1731-36.

161 John E. Wennberg, Dealing with Medical Practice Variations: A Proposal for Action, 3 Health Aff. 6 (1984); John E. Wennberg, Variations in Medical Care Among Small Areas, 126 Sci. Am. 120 (1984).

162 See, e.g., Thomas S. Crane, The Problem of Physician Self-Referral under the Medicare and Medicaid Antikickback Statute, 268 JAMA 85 (1992); Bruce Hillman et al., Physicians’ Utilization and Charges for Outpatient Diagnostic Imaging in a Medicare Population, 268 JAMA 2050 (1992); Jean Mitchell et al., Physician Ownership of Physical Therapy Services: Effects on Charges, Utilization, Profits, and Service Characteristics, 268 JAMA 2055 (1992). See generally Marc A. Rodwin, Medicine, Money & Morals (1993).

163 Barry R., Furrow, Medical Malpractice and Cost Containment: Tightening the Screws, 36 Case W. Res. L. Rev. 985, 1008–10 (1986).Google Scholar

164 See Gordon Guyat et al., Evidence-Based Medicine: A New Approach to Teaching the Practice of Medicine, 268 JAMA 2420 (1992) (advocating a de-emphasis on “intuition, unsystematic clinical experience, and pathologic rationale as sufficient grounds for clinical decision-making“).

165 See generally Medicine & Culture, supra note 15.

166 Of the three countries compared in this article, in 1988 the U.S. spent the most per capita and had the worst statistics with regard to infant mortality, perinatal mortality and male life expectancy. Japan spent less per capita than any other of the three countries except the U.K. and had the best statistics in these areas. Leslie M. Greenwald, Meaning in Numbers, Health Mgmt. Q., Third Quarter, 1992, at 9, tbl. 6.

167 McPherson, supra note 25, at 22.

168 Id. Japan has relatively few sophisticated tertiary care hospitals; open heart surgery is for that reason alone relatively rare. Only two percent of hospital beds are designated for intensive care of medical and surgical patients (compared with more than six percent in the U.S.). C.A. Sirio et al., An Initial Comparison of Intensive Care in Japan and the United States, 20 Critical Care Med. 1207 (1992).

169 McPherson, supra note 25. Japanese doctors are paid fee-for-service, and many are thought to perform unnecessary routine surgery to generate higher incomes. Pathology reports on excised appendixes reveal that approximately sixty percent were not diseased. Roemer, supra note 14, at 160.

170 See generally McPherson, supra note 25.

171 Susan Chira, Hirohito, 124th Emperor of Japan, is Dead at 87, N.Y. Times, Jan. 7, 1989, at 1.

172 Lawrence K. Altman, Tsongas's Health: Privacy and the Public's Right, N.Y. Times, Jan. 17, 1993, at 26.

173 Lawrence K. Altman, Tsongas Says He Mishandled Issue of His Cancer, N.Y. Times, Dec. 1, 1991, at Al.

174 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions, Vol. Two: Appendices, Empirical Studies of Informed Consent 221-24, 245 (1982).

175 Id. at 246.

176 Naoko T. Miyaji, The Power of Compassion: Truth-Telling Among American Doctors in the Care of Dying Patients, 36 Soc. Sci. Med. 249, 257 (1993).

177 Id.

178 Id. at 262.

179 See supra text accompanying notes 49-58

180 Aaron & Schwartz, supra note 35, at 107.

181 See Cicely Saunders, Dying They Live: St. Christopher's Hospice, in New Meanings of Death 153-79 (H. Feifel ed., 1977). Recently, the House of Lords specifically articulated that not only may competent patients decline medical treatment, but artificial feeding may also be withheld from patients in a persistent vegetative state. Airedale NHS Trust v. Bland, 2 WLR 316 (1993) (Eng.).

182 C., Cassel & D., Meier, Morals and Moralism in the Debate over Euthanasia and Assisted Suicide, 323 New Eng. J. Med. 750, 751 (1990).Google Scholar

183 See, e.g., Cruzan v. Director, Mo. Dep't Health, 497 U.S. 490 (1989). See also Alan Meisel, the Right TO Die (1989).

184 See Standard of Care, supra note 135, at 85-118.

185 See New York State Task Force on Life and the Law, when DEath is Sought (1994); Margaret Battin, the Least Worst Death (1994); Michigan v. Kevorkian, No. 9951, 1994 Mich. LEXIS 3033 (Dec. 13, 1994). In November, 1994, Oregon passed its Ballot Measure 16, which gives legal immunity to physicians prescribing lethal drugs to their competent, terminally ill patients who request them. See George J. Annas, Prescribing Death: The Oregon Initiative, 33 New Eng. J. Med. 1240 (1994) [hereinafter Prescribing Death].

186 See, e.g. M. Z. Solomon et al., Decisions Near the End of Life: Professional Views on Life-Sustaining Treatments, 83 Am. J. Pub. Health 14 (1993).

187 JAy Katz, the Silent World of Doctor and Patient 219 (1984).

188 Id. at 223, citing Avery D., Weisman & Thomas P., Hackett, Predilection to Death: Death and Dying as a Psychiatric Problem, 23 Psychosomatic Medicine 232, 250–51 (1961).Google Scholar

189 Id. at 228.

190 Daniel Callahan, Living Within Limits: The Future of Health Care, 7 Trends Health Care L. & Ethics 15, 16 (1992).

191 Id. at 16.

192 Id. (emphasis added).

193 D. Callahan, the Troubled Dream of Life: Living With Mortality (1993).

194 Ivan Illich, Medical Nemesis 122 (1975).

195 Id. at 140; see also Katz, supra note 187, at 1-79.

196 Illich, supra note 194, at 149.

197 Id.

198 Norman Paradis, Making a Living Off the Dying, N.Y. Times, April 25, 1992, at 23.

199 See John C. Bailar III & Elaine M. Smith, Progress Against Cancer?, 314 New Eno. J. Med. 1226 (1986); Tim Beardsley, A Way Not Won, Sci. Am., Jan., 1994, at 130.

200 Thomas Laetz & George Silberman, Reimbursement Policies Constrain the Practice of Oncology, 266 JAMA 2996 (1991).

201 Charles G. Moertel, Off-Label Drug Use for Cancer Therapy and National Health Care Priorities, 266 JAMA 3031 (1991). See also David V. Schapira et al., Intensive Care, Survival, and Expenses of Treating Critically III Cancer Patients, 269 JAMA 783 (1993); Cornelius O. Granai, Ovarian Cancer—Unrealistic Expectations, 327 New Eng. J. Med. 197 (1992).

202 Moertel, supra note 201, at 3031. On end-of-life medical experiments, see generally George J. Annas, The Changing Landscape of Human Experimentation: From Nuremberg to Helsinki and Beyond, 2 Health Matrix 119 (1992); George J. Annas, Faith (Healing), Hope and Charity at the FDA: The Politics of AIDS Drug Trials, 34 Vill. L. Rev. 771 (1989).

203 Not all Japanese observers agree with this position. Moreover, a culture's view of change radically over a short period of time. For example, Naokao Miyaji, see supra note 176, was kind enough to comment on an early draft of this article. She doubts that our view of the Japanese attitude towards death is correct and thinks at least in the post-World War II period “the notion that death should be avoided at all costs is very prevalent” in Japan. Letter from Naokoa Miyaji to George J. Annas & Frances Miller (June 2, 1993) (on file with authors). If she is correct, we are likely to see an enormous increase in medical care expenditures in Japan as its physicians adopt the expensive technological interventions used so freely in the U.S. and encourage their use. See infra Figure 3 at page 392.

204 Rihito Kimura, Anencephalic Organ Donation: A Japanese Case, 14 J. Med. & Phil. 97, 100 (1989). Kimura cites the Japanese text of Emiko Namihira, Culture of Illness and Death (1990) to support his conclusions.

205 See Prescribing Death, supra note 185. It also seems fair to conclude that physicians are at least as afraid of death as their patients are, and much more likely to view death as a professional defeat. See supra note 202 and sources cited therein; see also P.C. Thauberger & E.M. Thauberger, A Consideration of Death and a Sociological Perspective of the Quality of the Dying Patient's Care, 8 Soc. Sci. & Med. 437 (1974). In one study where twenty-four severely burned patients were told that survival with their degree of burns was unprecedented, twenty-one of them and/or their families chose nonheroic treatment. Sharon H. Imbus & Bruce E. Zawacki, Autonomy for Burned Patients When Survival Is Unprecedented, 297 New Eng. J. Med. 308 (1977).

206 Physicians’ economic self-interest often reinforces this preference for heroic treatment. See generally Rodwin, supra note 162.

207 The amount that could be saved is not known, has been variously calculated, and is dependent upon one's assumptions. See Singer & Lowy, supra note 58, at 478 (arguing, based on study showing 70 percent of people would refuse life sustaining treatment if incompetent and with poor prognosis, that up to $109 billion of medical care could be saved each year if everyone in U.S. executed a living will expressing that preference, and these requests were honored.) Others put possible savings much more modestly, at about $20 billion annually. Emanuel & Emanuel, supra note 58, at 540.

208 On outcomes research generally, see J. Jarrett Clinton, Outcomes Research—A Way to Improve Medical Practice, 266 JAMA 2057 (1991); John E. Wennberg, Outcomes Research, Cost Containment, and the Fear of Health Care Rationing, 323 New Eng. J. Med. 1202 (1990).

209 John A. Wennberg, AHCPR and the Strategy for Health Care Reform, Health Aff., Winter 1992, at 67, 68 [hereinafter Strategy for Health Care Reform]. See also Craig Fleming et al., A Decision Analysis of Alternative Treatment Strategies for Clinically Localized Prostate Cancer, 269 JAMA 2650 (1993).

210 Strategy for Health Care Reform, supra note 209, at 69.

211 Id.

212 Id. Studies of patient preferences regarding quality of life versus increased changes of longer term survival also support the proposition that patients value quality of life more than quantity. See, e.g., Barbara J. McNeil et al.Speech and Survival: Tradeoffs Between Quality and Quantity of Life in Laryngeal Cancer, 305 New Eng. J. Med. 982 (1981); Barbara J. McNeil et al.. Fallacy of the Five-Year Survival in Lung Cancer, 299 New Eno. J. Med. 1397 (1978).

213 The most egregious example of this point is set forth in Grace Plaza v. Elbaum, 588 N.Y.S.2d 853 (N.Y. App. Div. 1992), aff'd and certified question answered, 623 N.E.2d 513 (N.Y. 1993). A New York Court of Appeals, which had previously ruled that Jean Elbaum had left clear and convincing evidence that she never wanted tube feeding if she were in a persistent vegetative state, nonetheless required her husband to pay for more than a year of such treatment (in excess of $100,000) even though her nursing home had informed him (before he sued to enjoin treatment) that “'even if irrefutable evidence of the patient's wishes were forthcoming, Grace Plaza is not willing to undertake removal of the gastrostomy tube …. ‘ “ 588 N.Y.S.2d at 863. With such outrageous medical and judicial acts, no form of national health insurance can be affordable. See George J. Annas, Adding Injustice to Injury: Compulsory Payment for Unwanted Treatment, 327 New Eng. J. Med. 1885 (1992).

214 Lambert v. Park, 597 F.2d 236 (10th Cir. 1976). See generally Maxwell J. Mehlman, Fiduciary Contracting: Limitations on Bargaining Between Patients and Health Care Providers, 51 U. Pitt. L. Rev. 365 (1990).

215 Given the differences between Japan and the U.S., it is striking that, concerning incompetent patients, the two most important U.S. decisions upholding the right to refuse treatment, In re Quinlan, 355 A.2d 647 (N.J. 1976) and Cruzan v. Director, Mo. Dept. Health, 497 U.S. 490 (1989), both center on attempts to give the patient's family ultimate decision-making authority. One can see U.S. jurisprudence—at least where incompetent patients are involved—reaching for the Japanese family-centered model of health care decision making. Regardless of the law, however, U.S. physicians have traditionally made decisions for incompetent patients in conjunction with their families, with no court proceedings whatsoever.

216 Quoted in Dennis Farney, Novelist Updike Sees a Nation Frustrated by its Own Dreams, WALL ST. J., Sept. 16, 1992, at A l, A8.

217 John Updike, Rabbit at Rest 512 (1990). See also Christopher Ricks, Beckett's Dying Words 1 (1995): “Most people most of the time want to live for ever. This truth is acknowledged in literature …. But like many a truth, it is a half-truth … . For, after all, most people some of the time, and some people most of the time, do not want to live for ever.“; and William S. Burroughs, the Western Lands 257 (1987), who ends his book on our search for immortality by asking, “How long does it take a man to learn that he does not, cannot want what he ‘wants