Northwestern Journal of Law & Social Policy Volume 14 | Issue 2 Article 2 Winter 2019 Hard Choices and Deficient Choosers Mark Kelman Stanford Law School Recommended Citation Mark Kelman, Hard Choices and Deficient Choosers, 14 Nw. J. L. & Soc. Pol'y. 191 (2019). https://scholarlycommons.law.northwestern.edu/njlsp/vol14/iss2/2 This Article is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of Law & Social Policy by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. Copyright 2019 by Mark Kelman Volume 14 (Winter 2019) Northwestern Journal of Law and Social Policy Hard Choices and Deficient Choosers Mark Kelman* ABSTRACT Adolescents with end stage hip disease must decide whether to get a total hip replacement (THR) or a hip fusion procedure known as an arthrodesis. The decision is representative of many difficult medical decisions; the THR is better in the short-term but poses risks of wheelchair-reliance in middle age. Moreover, there is no single “best answer” to this problem given the heterogeneous tastes and circumstances of adolescent patients with end stage hip disease. Consumer sovereignty is the ordinary policy response to such heterogeneity, but even adolescents who are generally competent tend to be too myopic to make this decision prudently. Doctors should identify objective proxies for non-myopic tastes and either “nudge” patients towards acting on such tastes or inform them of the relevant proxies. * James C. Gaither Professor of Law and Vice Dean, Stanford Law School. Thanks to Ashley Titan for research assistance, and to Dick Craswell, David Studdert, George Triantis, and other participants at workshops at Stanford and Vanderbilt Law Schools for feedback. This piece is dedicated to my dear friend, the late Fred Dietz. His work as an orthopedist, particularly in treating club foot in less developed countries, was of enormous importance. He retained amazing intellectual curiosity throughout his professional life and not only brought the surgical decision-making problem I discuss in this paper to my attention, but devised the survey of orthopedic surgeons that I discuss at length in the piece. NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2019 I. INTRODUCTION Adolescent patients who present with an unstable slipped capital femoral epiphysis (SCFE)1 are at substantial risk of the hip becoming necrotic.2 If only part of the head of the hip joint becomes necrotic, the surgeon might simply reorient the ball in the hip socket. More typically, however, the patient is faced with the choice between arthrodesis (a hip fusion)—with the understanding that he or she will get a total hip replacement (THR) much later in life—or, instead, receive an immediate THR. Assuming a patient with end stage hip disease and a necrotic hip that cannot be saved by reorientation, there are two imperfect choices: immediate arthrodesis (typically to be followed by THR later in life) or immediate THR. In the short term, and for a substantial period thereafter, the patient who receives the THR will almost surely be better off: he or she will have far better range of motion and less pain. Although patients can walk quite well immediately following an arthrodesis and some modest rehabilitation, they will typically develop fairly severe back pain, moderately severer ipse-lateral knee pain, and some contra-lateral hip pain, most likely about twenty years or so after the initial operation.3 Moreover, those who have had an arthrodesis also often struggle with routine activities including donning and doffing socks, cutting toenails, riding a bicycle, and climbing stairs. Most immediately, patients who opt to get an arthrodesis also will typically walk with a pronounced limp, and the limp may have stigmatic impacts.4 In the long term, the trade-offs between THR and arthrodesis are more difficult to define precisely. The risks of THR involve the affected hip itself, which is subject to wear, loosening, and dislocation. The bottom line is that if an adolescent receives a THR, there is a non-trivial chance that the new joint will need to be replaced once and, barring substantial shifts in technology, the replacement procedure would be expected to have only modest success rates. There is a smaller chance that the hip replacement will fail 1 When a patient presents with a slipped capital femoral epiphysis (SCFE), the head of the patient’s femur has slipped backward and become dislocated from the hip bone. 2 See D. Pack, Slipped Capital Femoral Epiphysis: Diagnosis and Management, 82 AM. FAM. PHYSICIAN 258, 261 (2010) (noting that avascular necrosis—the death of bone tissue due to interruption of blood flow—occurs in 60% of patients with unstable SCFEs). 3 There are a wide range of plausible estimates in the literature about how severe pain is after arthrodesis and how soon it develops. The data suggests that back pain is the most severe complication and that ipse- lateral knee pain is the next most common symptom. Most reports suggest that pain typically does not become severe until fifteen to twenty-five years after the surgery, though there is non-trivial risk that it can begin sooner. Even if the longitudinal follow-up studies were better than they are, they might tell us relatively little about how patients generally would respond were fusions to become more widespread, since the existing follow-ups assess only those who receive the fusion operation, and the operation for the last half-century has largely been reserved for an atypical (and atypically impaired) subset of patients with deteriorating hips. At any rate, for fairly pessimistic views of the pain associated with arthrodesis, see H. Egawa et al., Long-Term Follow-Up of Hip Arthrodesis in Young Adults, 95 BONE JT. J. 169 (2013). For somewhat more optimistic reports, both in terms of pain severity and delayed onset, see M.V. Sahofroth et al., The Long-Term Fate of the Hip Arthrodesis: Does It Remain a Valid Procedure for Selected Cases in the 21st Century?, 34 INT. ORTHOD. 805, 807–09 (2010); J.M. Kirkos et al., The Long-Term Effects of Hip Fusion on the Adjacent Joints, 74 ACTA ORTHOP. BELG. 779 (2008). 4 For a discussion of the stigmatic impacts of limping, see infra notes 26–28 in addition to 154 and accompanying text. 192 Vol. 14:1] Mark Kelman again and need to be replaced a second time, though in this instance, the chances of successful re-implantation are (again, barring substantial technological advances) rather poor. What that means, in terms of function, is that the adolescent patient who gets a THR has a significant risk of relying on a wheelchair (or, more rarely, canes or walkers) to meet mobility needs by early middle age to middle age.5 The degree to which needing a wheelchair impairs function depends, of course, on features of the social environment not directly controlled by the patient (the accessibility of the places he or she seeks to go) and on the activities that the particular patient values. My interest in exploring how to choose between THR and arthrodesis—who should make the choice, under what conditions, and how a decision-maker should think about the choice—comes from my sense that the decision likely requires some form of policy intervention.6 I say it is likely the case because the truth is, I am interested in making a conceptual point about how to approach decision-making problems which have a particular set of features.7 I argue that a decision with a combination of traits, some of which are linked in interesting ways, may best be handled with particular forms of policy intervention. I discuss these traits, and how best to respond to decision-making settings with these traits, over the course of this Article. Part II of this Article demonstrates how the THR/arthrodesis decision itself, no matter who is charged with making it, is a difficult one to make. First, it is difficult: (a) because the factual outcomes that will eventuate from each available choice are uncertain,8 (b) because these outcomes are difficult to commensurate,9 and (c) because 5 All of these risks associated with total hip replacements are discussed infra in the text accompanying notes 20–24. 6 In this particular setting, a “policy” might not be set by law but by customary practice. I am suggesting a particular interpretation of the ideal method of eliciting consent to particular procedures by doctors, but I by no means suggest that those who do not elicit consent in these ways have performed surgery without legally adequate “informed consent.” In other, partly parallel settings that I discuss, official government policy would be sensitive to views of how best to deal with myopic decision-makers. 7 I believe that the THR/arthrodesis decision may well have this particular set of features, and I will try to demonstrate over the course of this Article that it is quite plausible that this decision has these traits. However, I recognize that I am unqualified to judge whether it truly does, not only because I would need to resolve disputes about the true probabilistic distribution of post-surgical outcomes that I am manifestly untrained to adjudicate, but because there are questions that psychologists typically pose about a diverse range of relevant issues (e.g., adolescent decision-making capacity; the degree to which people typically or invariably adapt hedonically to conventional disabilities but not to pain) and empirical sociological questions about the consequences of particular disabilities on functioning that are also far too controverted to permit me to reach confident conclusions.