Fins, M.D., Joseph J.

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Case Western Reserve University School of Law

Health Matrix: The Journal of Law-MedicineVolume 2 | Issue 21992Book Review: A Guide for the PerplexedJoseph J. Fins, M.D.Follow this and additional works at: https://scholarlycommons.law.case.edu/healthmatrixPart of the Health Law and Policy CommonsThis Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.It has been accepted for inclusion in Health Matrix: The Journal of Law-Medicine by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationJoseph J. Fins, M.D., Book Review: A Guide for the Perplexed, 2 Health Matrix 247 (1992)Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol2/iss2/7Book ReviewsA Guide for the PerplexedTHE HEALER'S POWER. BY HOWARD BRODY.-NEW HAVEN: YALE UNIVERSITY PRESS,1992. 311 pp.Reviewed byJoseph J. Fins, M.D.tA 31 YEAR OLD merchant is admitted to the hospital with alco-hol withdrawal seizures. She is an up and coming executive at alocal department store and this is the first time her alcoholism hascaused her to seek medical attention. In the midst of her alcoholicdetoxification, she insists that she nmust leave the hospital and returnto the management of her store. Her doctor, worried that she mighthave a recurrent seizure if discharged prematurely, tires to convinceher to stay a few more days. The patient refuses. When she re-mains firm in her desire to leave the hospital, the concern whichguided the physician's earlier actions is replaced by caution.The physician's response to the patient's intransigence is to care-fully inform her of all the conceivable risks she might face if she leftthe hospital and terminated her treatment. The patient senses thatthe empathy that marked her physician's earlier warning about arecurrent seizure is absent from his subsequent recitation of thedangers she might face if she left the hospital. Although the physi-cian believes that she understands these risks and can assume theresponsibility of making this decision, he informs her that he hasasked a psychiatrist to see her "to see if she is competent." As ex-pected the psychiatric assessment confirms that the patient has thedecision-making capacity to refuse potentially beneficial treatment.The patient's final moments with her physician are spent signing at Associate for Medicine, The Hastings Center and Instructor in Medicine, CornellUniversity Medical College. Address reprint requests to Dr. Fins at The Hastings Center,255 Elm Road, Briarcliff Manor, NY 10510.1. Professor of family practice, medical humanities, and philosophy, and director of theCenter for Ethics and Humanities in the Life Sciences, Michigan State University.HEALTH MATRIXrelease which states that she has signed out "against medicaladvice."This unhappy and all too familiar outcome thus concludes witha patient in great need failing to receive the care that she needs andwith the disruption of the doctor-patient relationship. The standardethical analysis of such a case helps us reconcile ourselves to ourdisappointment. We are told that the primary good that should befostered in the clinical encounter is the preservation of the patient'sautonomy. If the psychiatrist adequately assessed the patient's un-derstanding of the therapeutic choices presented to her and foundthat she had decision-making capacity, then she is free to leave thehospital prematurely. Although the theoretical reasons for this out-come are compelling, one is left to ponder the curious question ofhow physicians came to satisfy their patient's need for autonomyover their need for healing.Howard Brody has helped us answer this central paradox ofcurrent medical practice in his engaging and provocative new bookThe Healer's Power. Brody, professor of family practice, medicalhumanities, and philosophy, and director of the Center for Ethicsand Humanities in the Life Sciences at Michigan State University,has made an important contribution to medical ethics by introduc-ing the question of power into the field. Brody's explication of theimportance of the healer's power and his prescription for its judi-cious use helps us understand medical practice in a new light.Although trained as a philosopher, Brody wrote this book as aphysician who had discovered an unspoken incongruity betweenmedical ethics and medical practice. Brody contends that this di-vide between theory and practice stems from a failure to recognizethe important power dynamics of the doctor-patient encounter.This critical omission is further compounded by a theory of medicalethics, which Brody calls the "new medical ethics," that strives toprotect patients from the very power they seek to benefit from whenconsulting a physician. Brody learned at the bedside that the physi-cian's true function was as a purveyor of healing and not as a pro-tector of rights.Brody contends that the medical ethics' failure to incorporate aconsideration of the healer's power has gone unrecognized because"the existing vocabulary, which constitutes the standard view ofmodem medical ethics, seems to be all-inclusive, offering a label foralmost every imaginable dilemma." Bringing together the perspec-tive of physician and philosopher, Brody came to appreciate thatthe labels offered by the existing paradigm confused physicians[Vol. 2:247BOOK REVIEWabout their true role. By excluding from its analysis of the clinicalencounter something as basic as the healer's use of power, Brodyargues that the "new medical ethics" avoided a central theme un-derstood intuitively by all who have either sought healing or whohave tried to heal. Indeed, one leaves Brody's book wonderingwhether the rights language which so predominates medical ethicsis but a proxy for an explicit discussion of the power dynamics be-tween patient and physician and within the physician him/herself.Brody has used an ample dose of fiction and literary allusions toillustrate this heretofore unrecognized but glaring omission ofpower. In fact he begins this work of nonfiction with a powerfulstory entitled, "The Chief of Medicine." This short story, like allthe literary sources used in The Healer's Power, allows the layreader to see for him/herself the centrality of power through the useof fiction. Just as the life stories of his patients helped Brody learnof the importance of power, fictional characters allow the reader tocome to the same realization. As story-teller, literary critic, andphysician, Brody makes a compelling argument for the inclusion ofpower considerations into medical ethics.Brody defines the elements of the healer's power as either Aes-culapian, charismatic or social. Aesculapian power is the practi-tioner's knowledge of his/her craft and is "transferable" from onepractitioner to the next. Charismatic power is highly personal anddependent upon the physician's personality. Social power stemsfrom the ability conferred by society upon a physician to define"what counts as medical knowledge and medical truth" as well asthe socioeconomic status now accorded to physicians. Recogniz-ing that healing can not occur without the use of power, Brody dis-cards the unhelpful appellation of any use of physician power aspaternalistic. Instead he offers a guide for what counts as the ethi-cal and responsible use of power in the clinical encounter. He sug-gests that the proper use of the healer's power is "when that powercan be described as owned power, shared power, and aimed power. "Brody argues that when power is used properly it is ultimatelyshared between physician and patient. This partnership requiresthat physicians own or disclose the power possessed and have a goalat which the power is applied or aimed with the help of the patient.When these criteria are met, the healer is allowed to use his/herpower to promote healing, for the patient, through enfranchise-ment, is protected from the potential abuse of that power. To illus-trate the responsible and indeed "judicious" use of power, let usreturn to the case with which we started with Brody's guidelines inHEALTH MATRIXmind. At the onset we are at an advantage-at once able to recog-nize that we are facing a power struggle between an ill and vulnera-ble patient and a physician who seems to hold all the cards. Byacknowledging his power, the physician could share it with his pa-tient and preempt the need for her to seek refuge in her right toleave the hospital against medial advice. When the patient refusescontinued hospitalization, the physician could explore what is moti-vating this decision and perhaps confess that he could call a psychi-atrist to see if "you can make this decision for yourself," and thenquickly add that "I'm not going to do this because we both knowhe'll find that you can leave if you want to." With this admission,the physician informs the patient that he understands the limits ofhis power and that he is more interested in taking care of her thanin taking advantage of her vulnerability. This acknowledgement ofowned power is powerful reassurance that the physician is willing toconsider the goals of the patient's hospitalization in collaborationwith the patient.Brody argues that the patient's life goals should be the focus ofaimed power. This important realization, so often lost in the stan-dard ethical analysis of cases like this one, is that one of the pa-tient's life-goals is not to sign out of the hospital against medicaladvice. The goal, at least at some level, is to get well. If the physi-cian seeks to discern what is motivating the patient's refusal oftreatment, he can help the patient achieve these life goals. Insteadof admonishing the patient by pointing out that a premature hospi-tal discharge might result in a seizure, death, or even the loss ofinsurance reimbursement, the physician can more productively seekout what the patient herself wants out of her hospitalization. Abrief yet compassionate remark by the physician will cement thedoctor-patient relationship just as quickly as a litany of recited riskswill fracture it. Aimed power has the physician suggesting to thepatient that the "real reason you came to the hospital was that youwanted to get over your drinking problem so that you can take careof your little girl who has just started kindergarten." He might sug-gest he has "little doubt that you want to continue working at yourstore and keep rising up the corporate ladder" and that "I don'tthink you want to be an alcoholic."Although some might see this approach as paternalistic becauseit is so active and seemingly over-involved, the active interventionsuggested by the Brody guidelines actually protects the patient frompaternalism, which never involves the sharing of authority. It is250 [Vol. 2:247BOOK REVIEWclear that Brody's model is not the return of old-fashioned paternal-ism in new clothes.Brody contends that, unlike the paternalist, a physician who isable to establish such a human connection with a patient has cometo understand the power s/he possesses and accept the vulnerabilitywhich comes with its full expression. This concerted use of physi-cian power is compassion, not paternalism. He writes that:Surely, being with the sufferer and helping him find his own storyto attach meaning to his experience is a prime example of sharedpower. Few things that the physician can do have the capacityto empower the patient to a similar degree.Liberated from simplistic formulations of patient autonomy andphysician paternalism, Brody is able legitimately to understand au-tonomy as a end constraint of power directed toward the ultimatepursuit of physician compassion which is described as "the embodi-ment of shared power." Brody argues for a virtue ethics that pro-motes compassion through the development of empathic curiosity.The intersection of rights language and Brody's theory of poweris most significantly seen in the question of informed consent. Thetwo chapters dedicated to this topic should prove especially inter-esting and provocative to lawyers who read this journal. Brodycontends that the ethical use of power allows the physician somediscretion about the disclosure of risks. Motivated by the impor-tance of sharing power, Brody argues that physicians should adopta conversation model of informed consent rather than the onewhich evolved out of negligence law.His model seeks to establish informed consent as a "naturalcomponent of a physician-patient relationship that respects patientautonomy" and not as a "legal intrusion" into the field. This is animportant corrective because physicians, as Brody rightly notes,"see informed consent as a legal practice, not as part of doingmedicine; and they fail to see any basic link between jumpingthrough the perceived legal hoops and doing anything valuable forthe patient or for patient self-determination." By making informedconsent more of an organic component of medical practice Brodyhopes that it will become a substantive as well as procedural en-deavor which serves patients and promotes healing.Brody offers his conversation model in light of empiric datawhich suggests that the current model, while "theoretically satisfy-ing", fails to be implemented adequately. He is critical of the legal-istic model which uses tort law to mandate physician complianceand which retrospectively evaluates the "adequacy of the disclosure1992]HEALTH MATRIX(of risks) in light of later events, especially in cases of adverse out-come." This way of evaluating the informed consent process,Brody maintains, will lead physicians to feel compelled to explicitlydisclose even the remotest of risks. Although this strategy mightprovide protection in future litigation, this approach may lead to asituation in which the physician absents him/herself from a coun-selling role by presenting the patient with all potential risks withoutevaluating their relative importance.In Brody's conversation model, the physician plays a more ac-tive role using his/her technical ability to differentiate the serious-ness of one risk versus another. This is critical because:In a reasonable and realistic medical conversation, we can notdisclose this remote risk without at the same time conveying ad-ditional messages that are both unintended and confusing.In contrast to the legalistic model which might encourage iatrogeniclevels of disclosure, the conversation model encourages "a sort ofconversation between physician and patient designed to involve thepatient in medical decisions in an informed way to the extent thatthe patient wishes." This participation is predicated upon physi-cians actively laying the "groundwork" for this exchange.Using his/her Aesculapian power to first evaluate the probabil-istic nature of medical risk, the physician would then help the pa-tient understand what risks were relevant by limiting disclosure tothose dangers which met the transparency standard of informedconsent. The transparency standard safeguards the informed con-sent process from physician paternalism by operationalizing thephysician's owned, aimed, and shared power. Transparency pro-tects the patient and promotes healing by requiring that the physi-cian "think out loud" about "precisely those risks that thephysician weighed seriously before deciding what intervention torecommend." Informed of these deliberations, the patient is then atliberty to ask for more information should he/she so desire it.When the patient's additional questions are answered, he/she then"authorizes ...the recommended intervention or an alternativeone." The physician knows he/she has told the patient enoughonce this standard of transparency has been reached.Brody expands his discussion of power beyond the informedconsent issue and discusses a wide range of concerns including con-fidentiality, substituted judgment, quality of life, cost containment,medical economics, and futility. These analyses offer an originaltreatment of these subjects and illustrates the applicability of powerconsiderations to each of them. Brody's related discussion of the[Vol. 2:247BOOK REVIEWrescue fantasy and the power to define medical futility are especiallywell conceived. Brody contends that when "well-accepted ethicalprinciples appear routinely to be ignored or misapplied in a cate-gory of cases, one might ask whether something like the rescue fan-tasy is at work." His examination of rescue and its corollary,futility, provide a plausible explanation of why American society isenamored with high tech medical care and with dramatic life anddeath court cases.Brody's conception of the doctor-patient relationship, writtenfrom his perspective as a family practitioner, might be criticized in afractured health care system in which many fail to have any accessto health care much less an on-going doctor-patient relationship.Although his vision of the clinical encounter appears at first glanceromantic, his analysis is anything but sentimental in its introductionof power considerations. Brody's argument for a virtue ethicsamong physicians and the incorporation of a primary care attitudein all medical specialties may be an important and effective way toaddress the health care crisis.Although the book's natural audience is physicians and medicalethicists, lawyers will find this volume provocative as it illuminatesthe complex ethics of the clinical arena and analyses the influence oflaw on medical ethics.In imagining the epitaph that William Carlos Williams mighthave liked for himself, Brody wrote: There was about him the con-stant will of a man trying to recognize. Indeed that is the impressionthat most readers will have of the author of this wise and thoughtfulbook.1992]

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