Two articles in this week’s Journal of the American Medical Association (JAMA) are of interest to lawyers who litigate, or counsel about, health effects.
One article deals with the nocebo effect, which is the dark side of the placebo effect. Placebos can induce beneficial outcomes because of the expectation of useful therapy; nocebos can induce harmful outcomes because of the expectation of injury. The viewpoint article in JAMA points out that nocebo effects, like placebo effects, result from the “psychosocial context or therapeutic environment” affecting a patient’s perception of his state of health or illness. Luana Colloca, MD, PhD, and Damien Finniss, MSc Med., “Nocebo Effects, Patient-Clinician Communication, and Therapeutic Outcomes,” 307 J. Am. Med. Ass’n 567, 567 (2012).
The authors discuss how clinicians can inadvertently prejudice health outcomes by how they frame outcome information to patients. Importantly, Colloca and Finniss also note that the negative expectations created by the nocebo communication can take place in the process of obtaining informed consent.
The litigation significance is substantial because the creation of negative expectations is not the exclusive domain of clinicians. Plaintiffs’ counsel, support and advocacy groups, and expert witnesses, even when well meaning, can similarly create negative expectations for health outcomes. These actors often enjoy undeserved authority among their audience of litigants or claimants. The extremely high rate of psychogenic illness found in many litigations is the result. The harmful communications, however, are not limited to plaintiffs’ lawyers and their auxiliaries. As Colloca and Finniss point out, nocebo effects can be induced by well-meaning warnings and disclosure of information from healthcare providers to patients. Id. at 567. The potential to induce negative harms in this way has the obvious consequence for the tort system: more warnings are not always beneficial. Indeed, warnings themselves can bring about harm. This realization should temper courts’ enthusiasms for the view that more warnings are always better. Warnings about adverse health outcomes should be based upon good scientific bases.
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The other article from this week’s issue of JAMA addresses the harms of screening. Steven H. Woolf, MD, MPH, and Russell Harris, MD, MPH, “The Harms of Screening: New Attention to an Old Concern,” 307 J. Am. Med. Ass’n 565 (2012). As I pointed out on these pages, screening for medical illnesses carries significant health risks to patients and ethical risks for the healthcare providers. See “Ethics and Daubert: The Scylla and Charybdis of Medical Monitoring” (Feb. 1, 2012). Bayes’ Theorem teaches us that even very high likelihood ratios for screening tests will yield true positive cases swamped by false positive cases when the baseline prevalence is low. See Jonathan Deeks and Douglas Altman, “Diagnostic tests 4: likelihood ratios,” 329 Brit. Med. J. 168 (2004) (Providing a useful nomogram to illustrate how even highly accurate tests, with high likelihood ratios, will produce more false than true positive cases when the baseline prevalence of disease is low).
The viewpoint piece by Woolf and Harris emphasizes the potential iatrogenic harms from screening:
- physical injury from the test itself (as in colonic perforations from colonoscopy);
- cascade of further testing, with further risk of harm, both physical and emotional;
- anxiety and emotional distress over abnormal results;
- overdiagnosis; and
- the overtreatment of conditions that are not substantial threats to patients’ health
These issues should have an appropriately chilling effect on judicial enthusiasm for medical monitoring and surveillance claims. Great care is required to fashion a screening plan for patients or claimants. Of course, there are legal risks as well, as when plaintiffs’ counsel fail to obtain the necessary prescriptions or permits to conduct radiological screenings. See Schachtman “State Regulators Impose Sanction for Unlawful Silicosis Screenings,” 17(13) Wash. Leg. Fdtn. Legal Op. Ltr. (May 25, 2007). Caveat litigator.
