De iure De-iure - Page 18

Page 18 / De iure September 2018 the treatment or not. There are debates around the scale of information the physician should be required to disclose here. A lot? A little? Some people are not interested in knowing what will happen to them in a probability of 1/1000. Others want to know absolutely everything, in painstaking detail. Physicians therefore adhere to a standard protocol of disclosure to avoid the threat of legal liability in cases of partial or non-disclosure. But with personalization, disclosure could be tailored so that only information likely to be essential to the patient is disclosed, and information likely to be not essential is omitted. For example, the physician could enter an ID number in the computer and see: “Judi: Disclosure Level 7”, so the physician knows that a high level of disclosure is pertinent in your case. Or he might see: “Ariel: Disclosure Level 2” and know that I am interested in minimal disclosure. That way everyone gets the information they want. This kind of personalized medical disclosure could have significant economic and health benefits.” But is it possible that the personalization of default rules misses the point that prompted the need for extended duties of disclosure? “In the book ‘More Than You Wanted to Know: The Failure of Mandated Disclosure’, Carl Schneider and Omri Ben- Shahar argue that disclosure, particularly in the field of consumer transactions, has become hugely excessive. People are simply not interested in reading the small print, so why bother? What’s the point in spending all these resources that are ultimately paid for by consumers? We agree that there is a serious problem of excessive disclosure and unreasonable load of information. But if you personalize the duty of disclosure for consumers, for example, people will get precisely what they want, and the use of information will be far more effective.” But what about privacy? “Well, some will argue that using Big Data for personalization curtails on privacy, and the answer to that is, too late!” smiles Prof. Porat. “The use of Big Data is already here; it is done first and foremost in the field of marketing and consumers are generally satisfied with it. For instance, I’m pleased that I get only five emails per day trying to sell me products or services, instead of 500 of them. Many see the advantage of receiving offers for purchasing products that are tailored to them and consistent with their preferences and expectations.” I suppose the primary objection to the personalization of default rules is the inevitable compromise to the certainty of the law and the ability to rely on it. “True, but is it convincing? Think of consumers who purchase a product, a TV set for example. The consumer isn’t aware of the defaults that apply to the transaction. For instance, what will happen in the case of a defect in the set. There is an illusion of certainty here, as if the consumer is already aware of the defaults. With personalization, the consumer will receive defaults that are closest to his or her preferences, needs and expectations. Just as in the case of inheritance, which opened our discussion: most people do not leave a will and hardly know how their estate will be divided after they pass away. They don’t like to think about death and deal with its consequences. So, the rationale for personalization here would be to divide the estate in a way that mirrors, as close as possible, the wishes of the diseased. That’s the basic idea.” In the article you discuss an interesting example of organ donation... “Yes, the question is what happens with organ donation after death. Take Germany versus Austria. In Germany, the default is that if a person does not express his or her wish on the matter, their organs cannot be harvested after death, as in Israel. But in Austria, the default is the reverse: if a person does not express his or her wish, their organs can be harvested. While the population in both countries is similar in many ways, in Germany only about 10%