Law of Patient Experience

Hippocrates was a Humanist before Humanism was a thing.

He valued the patient experience, and considered the patient encounter to be the most important aspect of patient care, in contrast to his colleagues who valued logic and reasoning over direct experience.

In the end, time proved Hippocrates right.

Experienced driven thinking made Hippocrates a luminary in the field of medicine, and similarly, experienced driven thinking made Supreme Court Justice Oliver Wendell Holmes a luminary in the field of law. Despite coming from two different fields, emphasizing the importance of experience lionized the two in their respective fields.

Justice Holmes once wrote:

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

In other words, the presumed logic of law should matter less than the experience of the law – as it is experienced by those following the law.

Stated another way, healthcare laws should be defined by how they affect the patient experience, not by any presumed logic or rationale independent of the patient, by assuming how a patient will interact with the law.

Yet we see the opposite, we find healthcare dominated by purportedly logic driven laws.

As a result, we have courtrooms filled with opioid litigation, lawsuits filing public nuisance ordinances against healthcare companies somehow equating their role in manufacturing or distributing opioids with the opioid epidemic itself.

We have abortion laws that traumatize the patients while in the process of providing consent to receive abortions – at the hands of the abortion provider no less.

When healthcare is reduced or distilled to a presumed logic, it loses the essence of what makes it healthcare. And we lose sight of what makes healthcare a fundamental liberty.

Protected under the First Amendment, healthcare is one of many enumerated rights that are not explicitly defined but implicitly understood to apply to everyone equally.

The First Amendment is more than easily identifiable, tangible acts such as free speech or the ability to pray. The amendment in its fullest sense is a very complex, nuanced right that balances individual obligations alongside the broader societal good.

In many ways these are positive rights, not the traditional negative rights we ascribe to American society. Positive rights need laws that maintain a balance between individual freedoms and social responsibilities.

A fancy way of saying healthcare laws should be defined through the experiences of those who experience it, in a balance between the individual experiences – whether that is physician and patient, or hospital administrator and medical supplies distributor.

Healthcare laws derived from experience recognize the natural rights of those in healthcare as individuals, while maintaining the appropriate oversight necessary to establish a balance of individual rights and social good that define the Bill of Rights in the Constitution – laws that distribute societal burdens among all equally.

Accordingly, we must avoid laws that may appear logical, but place undue harms on individuals based upon the experience they go through. When seen in this manner, experience and logic become concepts to balance against one another, like assumed burdens of legal risk.

Laws that place the presumed risk of a healthcare complication over the actual risk of good clinical care would be one example. It makes sense to avoid complications, but not if avoiding that complication incurs undue harms upon select individuals losing access to good clinical care as a result.

This means laws that prioritize a presumed logic, or based upon an assumption of how patients will act, should not place undue burdens upon select patients once that law is experienced by those affected.

In a sense, the logic of law should balance against the experience of the law. In much the same way the presumed risk of a law balances against the actual risk of a law.

In this manner we can conceive laws that would optimize healthcare equity as it is experienced among different patient populations, balancing the experiences of healthcare among different populations and individuals based upon the burdens imposed upon them.

This is the ethos of the Constitution.

In recent times, many who push for equity have advocated for greater government intervention. But we can achieve equity simply by improving our understanding of healthcare laws, revising the laws to better reflect the experiences of healthcare.

This approach embodies the Enlightenment principle of equal treatment for individuals of different backgrounds. The very principles America’s Founders drew upon when they declared independence, stating it was self-evident that all men are created equal.

But the Founders were at their heart, rebels. They eschewed government intervention, and sought a balance between liberties and equalities – not through government intervention, but through rule of law, creating a system of law based upon an agreed set of principles.

This belief is why claims for equal treatment are so deeply rooted in American history. It was the experience they went through that defined their beliefs, an experience of rebellion that led to the Constitution.

An experience we now fail to understand in healthcare, as we now have healthcare laws that distill healthcare experience into logic.

Ultimately, they are different concepts, to be held in a balance. We cannot reduce experience into logic and expect the same framework of law.

We need healthcare laws based upon experience, because healthcare is an experience – sometimes logical, and sometimes illogical.

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