Washington Law Review


Rational choice theory once pervaded the law. But we now know that individuals often make decisions that are not in their best interests. Many areas of the law have responded accordingly. The law of health care decision-making, however, has not. With limited exception, patients have the right to make their own medical decisions about their treatment, even if they make bad decisions. And there is ample evidence from the behavioral sciences that they do make bad decisions. Patients lack the stable preferences that the law assumes they will draw upon in making decisions, and they suffer from a number of systematic decision-making biases. Bad decision-making negatively impacts the individual, but also the entire health care system that must bear the cost of poor decisions. Patient choice nonetheless remains a hallmark of legal doctrine. This Article challenges the myopic approach that solely values autonomy to the detriment of well-being. It proposes that both doctors and patients instead be nudged toward the welfare-maximizing treatment choice by the establishment of a treatment default. A right to opt-out still protects autonomy, but the default will move most patients toward better decisions—those that data suggest will most increase patient well-being. We should no longer accept a regime that delegates the complex task of decision-making to often vulnerable patients without regard to their well-being.

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