Lawmakers try to ‘script’ what doctors say

State legislatures are drafting laws that would mandate what doctors tell their patients about culturally controversial topics such as abortion or guns in the home, or even purely clinical issues such as breast cancer and tissue density. How involved should politicians be in the exam room?.

The patient exam room may soon become a lot more crowded, depending on the outcome of various state legislative efforts around the country to prescribe physicians' practice.

Some of the legislation builds on abortion-related concerns, while other bills delve into medical education, such as delineating what doctors should say near the final days of a patient's life or, alternatively, what they shouldn't say related to gun safety in a patient's home.

Illustration by David Cutler
Illustration by David Cutler

Legislative advocates maintain that the state has a responsibility to get involved when problems with patient care are identified. Florida Rep. Jason Brodeur, R-Sanford, said he introduced a bill barring most clinicians from asking about gun ownership after learning that some physician queries had resulted in treatment denials.

California State Sen. Joe Simitian, D-Palo Alto, cited the patient's right to know in describing why he proposed legislation requiring women to be notified if they have dense breast tissue and the inherent limitations of mammography in that case.

“The argument we heard from the medical establishment was that essentially that patients can't handle the truth,” he said. “That argument is at best patronizing and at worst life-threatening.”

But even when the legislation has some clinical basis, such as in the case of nuanced mammography education, the state's involvement worries and angers some physicians. They argue that as legislative requirements accumulate they will further erode already limited time with patients. The most frequently cited concern is a potentially onerous intrusion into the doctor-patient relationship.

“I think it's a bad idea for legislators to script conversations between doctors and their patients,” said Molly Cooke, MD, FACP, 2012-2013 president-elect of the American College of Physicians, a College Regent, and a professor of medicine at the University of California, San Francisco.

To date, most of the recent legislation hasn't made significant headway. Gov. Jerry Brown vetoed the California mammography law last fall. Also last year, a federal district judge issued a temporary injunction to prevent a Texas abortion law from going into effect. The law would have required doctors who provide abortions to first perform a sonogram and describe the fetus to the pregnant woman.

In response to the Florida gun law, informally dubbed “Docs vs. Glocks,” ACP's Florida chapter joined with several other physician groups to block it from going into effect. A federal district judge backed the physicians, granting a preliminary injunction last fall.

Once state legislators take steps to restrict or mandate certain questions or conversations, the result can be a very slippery slope in terms of patient care and the doctor-patient relationship, said Robert B. Doherty, senior vice president of governmental affairs and public policy at ACP. What if another interest group, he asked, advocated for legislation to block doctors from asking about smoking or alcohol consumption?

Rep. Brodeur, for his part, said that he didn't see a legislative role in those areas, citing the Second Amendment protection for gun ownership. “Smoking is not a constitutional right,” he said.

Legislative genesis

Some of the recent legislative bills, including those in California and Florida, stemmed from specific incidents. Sen. Simitian described the experience of one of his constituents, a registered nurse, who had routinely gotten mammograms and learned only after she was treated for breast cancer that dense breast tissue had made identifying a malignancy via mammography alone more difficult.

The Florida gun law emerged from an incident in which the mother of a patient alleged that her pediatrician asked her to find a new doctor after she refused to answer questions about firearms in her home, according to a legislative history provided in the federal district court's order granting the preliminary injunction. Additional incidents were reported to legislators, as well as National Rifle Association officials, said Rep. Brodeur, although he couldn't specify how many. “Patients were being denied care simply because they were lawful gun owners,” he said.

Before the Florida law passed the legislature, its language was amended to include an exception, specifically if the clinician or facility “in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others.” That exception would enable some clinicians, such as mental health professionals or paramedics, to more routinely ask about gun access, Rep. Brodeur said.

But that question would be less likely to have medical relevance in a more routine doctor visit, he said. “I'm not sure it ever would, if you were a pediatrician, unless the kid came in with a gunshot wound,” Rep. Brodeur said. If a child had bruises indicating abuse, he added, that might be another possible scenario.

Mr. Doherty worries about the potential chilling effect for physicians. “Even with those exceptions, there are risks that the patient might conclude that the doctor is asking questions about guns that a patient objects to, and will file a complaint to the medical board to sanction the doctor,” he said.

Fears about legal action are not unfounded. In 2010, a case was brought against several California physicians based in part on the argument that they didn't fully comply with the dictates of that state's end-of-life law, which went into effect the prior year.

Regulation vs. intrusion

At the heart of the ongoing legislative and judicial activity is a disagreement over precisely where the state's role lies in terms of protecting public and patient safety.

The state can be instrumental in guarding patients against “bad doctors,” including those who are impaired or in other ways practice unsafe medicine, said Yul Ejnes, MD, FACP, who chairs ACP's Board of Regents and is a clinical associate professor of medicine at Brown University in Providence, R.I.

But, he added, “When the state starts to get involved in the essence of the practice of medicine, the actual content of the decisions a physician makes, what a physician says to a patient, or what a patient can say to a physician without fear of adverse action, I think that's crossing a line.”

Sometimes state legislators do reflect their personal bias, overreaching into the doctor's office, said William Winslade, PhD, JD, director of the Health Law & Policy Institute at the University of Houston Law Center. He pointed to the recently passed Texas sonogram law as a particularly egregious example.

In his preliminary injunction, the federal judge apparently agreed. U.S. District Judge Sam Sparks wrote that the law “compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen.”

In some other instances, though, significant evidence has demonstrated that doctors have failed to positively regulate themselves through education, said Mr. Winslade, who also teaches medical ethics at The University of Texas Medical Branch at Galveston. One such example is the discussion of end-of-life options, resulting in the passage of related laws, such as the recent New York Palliative Care Information Act, he said.

“I would argue that legislation is not the most effective way to get doctors to act in the most appropriate, professional manner,” he said. “But I think the failure of the medical organizations and even the licensing boards to take a proactive approach to physician education has created a gap that on a hit-and-miss basis the legislature sometimes addresses.”

Scripting conversations

The New York law, which went into effect in 2011, is worded somewhat differently than the California end-of-life law that's involved in the recently filed lawsuit. The California law was the country's first requiring health practitioners to educate dying patients upon their request about their legal treatment options, including their right to refuse treatment, according to Compassion & Choices, a nonprofit organization that has advocated for such laws in California and other states.

In 2010, Compassion & Choices filed the lawsuit in a California court on behalf of a 43-year-old woman with pancreatic cancer. Their argument, among others, is that the dying mother of three should have been informed about palliative sedation as one of her treatment options.

According to the wording of the New York law, the onus is on physicians and nurse practitioners to offer information about end-of-life options, regardless of whether it's requested, if a patient is diagnosed with a terminal illness or condition. Under the law, “terminal” is defined as an illness or condition which “can reasonably be expected to cause death within six months, whether or not treatment is provided.”

The law only requires a physician to offer the information, said Beth Popp, MD, FACP, an oncologist and hospice and palliative medicine specialist who directs the Division of Palliative Medicine at Maimonides Medical Center in Brooklyn, N.Y. “The first step in complying with this law is listening to the patient,” she said. “You don't have to assault them with truth that they are not interested in hearing.”

Dr. Popp, who co-authored a New England Journal of Medicine article critical of the law last year, said she remains a strong advocate for talking to patients about these issues, ideally over a period of time. But the law creates some difficulties for both the doctor and optimal patient care, starting with the stipulation of a terminal diagnosis.

“There isn't always a bright line that you cross over that tells you when a patient has a prognosis of six months or less,” she said.

That time window might be more obvious with diagnoses like cancer, Dr. Popp said. But primary care doctors frequently treat patients with, say, congestive heart failure or a lung disease, where the prognosis is ultimately terminal but the time frame is vaguer, she said. “It's important to have these conversations as patients' conditions change, but the changes are often subtle and incremental.”

As with end-of-life counseling, physicians typically don't dispute the importance of mammography education.

But the California law goes further, Dr. Cooke said, as it focuses on women with dense breast tissue. One potential byproduct is that a doctor might disproportionately devote more attention to those patients, rather than discussing the pros and cons of the technology with all mammography patients, she said.

Gov. Brown vetoed the mammography law last October. In his written explanation, he said that his primary concern was that the law went beyond education to recommend that additional breast screening might be beneficial.

State Sen. Simitian countered that nothing in the two-sentence notice that would be sent to women prescribes or interferes with the doctor-patient relationship. Its wording, he pointed out, states that “you might benefit from supplementary screening tests, depending on your individual risk factors” and recommends that “you should contact your physician if you have any questions or concerns about this notice.” During legislative hearings, some doctors objected to the time involved in fielding those patient calls, he said.

Contradicting guidelines

When doctors believe that a law's dictates contradict the patient's best interests, the first step they should take is to consult an attorney, Mr. Winslade said. Don't rely on feedback from other doctors, he said. Find an experienced lawyer who can outline what the law requires.

Historically, there have been some instances in which state legislators needed to intervene on the behalf of patients, Dr. Cooke said. In the early days of the AIDS epidemic, when some patients were being tested for HIV without their knowledge, California legislators required that patients be given the opportunity to provide consent, she said. They also stipulated some of the related counseling that should be conducted.

“I actually think that at that time that was appropriate,” Dr. Cooke said, pointing to the then-dire health and social consequences of a diagnosis.

Mandating certain types of patient education, though, is a “very different beast” than preventing doctors from discussing certain subjects, such as in the “Docs vs. Glocks” law, she said.

The Federation of State Medical Boards had similar concerns about the Florida gun law because it was mandating “something that was contrary to what the medical standards were,” said Lisa Robin, the organization's chief advocacy officer. Last May, the association sent a letter to Florida governor Rick Scott urging him to veto the recently passed law, which he then signed on June 2.

It's not likely that the tug of war between legislation and medicine will end any time soon. Several of the recent laws are still wending their way through the court system.

Meanwhile, California's Sen. Simitian said he plans to introduce his mammography bill again during the current legislative session and will work to assuage concerns expressed by the governor and other interested parties. “I am not, however, interested in a do-nothing notice that fails to provide patients with the information they need to take charge of their own health care,” he said.