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74 Maine Law Review 73 (2022)


Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions alone.

Unfortunately, despite robust evidence of effectiveness, few clinicians in the United States use PDAs when they deliver healthcare services. This must change. It is time to move PDAs from research to practice and from the lab to the clinic.

This Article describes a key tool that can nudge clinicians to use PDAs with their patients: the monetary incentive of a professional liability insurance premium reduction. Medical malpractice insurance companies should offer premium discounts to clinicians who use PDAs. This incentive will spur PDA use, and PDA use will improve patient safety, which benefits both patients and malpractice insurers.