differences in the laws of New York and Texas. First, unlike Texas and most other states, New York has never adopted a “best interests” standard for decisions making in cases of incapacitated patients who lack surrogate decision makers; nor has New York passed statutory laws recognizing a decision-making hierarchy (among family members and friends) for incapacitated patients who have not signed advance directives expressing whom they prefer to make decisions on their behalf. Second, in the 1988 O’Connor case, the highest court in New York established a standard of “clear and convincing” evidence with a restriction that evidence for decisions about life-sustaining treatment must be determined solely by subjective criteria – that is, only explicit, precise, and firm statements from the patient herself are legally acceptable for abatement of treatment, especially in cases of artificial nutrition and hydration (see Appendix 1 for a discussion of the O’Connor decision) [33,34]. One question on the New 76 S. Van McCrary / Neonatology and the specter of the law 0 10 20 Knowledge of law: Low Medium High* (n=83) (n=59) (n=34) * Score of 70% or higher and correct answer to O’Connor question Fig. 3. New York physicians’ legal defensiveness by knowledge of medical law regarding end-of-life treatment in two states. Percent with high legal defensiveness. York version of our law quiz was designed specifically to test physicians’ knowledge about the O’Connor case. To further examine the impact of New York physicians” knowledge of the O’Connor decision on their degree of legal defensiveness, we isolated a group of respondents, post hoc, who both performed well on the law quiz, and correctly answered the O’Connor question. As shown in Fig. 3, this subgroup of respondents were found to have the highest degree of legal defensiveness and, in fact, to account entirely for the contrasting pattern of association between legal knowledge and defensiveness in New York compared to Texas. When this subgroup of respondents was removed from the analysis, the association between knowledge and defensiveness in the remainder of the New York sample is consistent with that in the Texas sample (see Table 1); that is, as knowledge of law increases, legal defensiveness decreases. Thus, the significant overall interaction effect between state and legal knowledge is completely attributable to a subgroup of respondents who possessed accurate knowledge of law, including the specific implications of the O’Connor case [33]. Our findings suggest that New York’s current laws exacerbate extreme legal defensiveness among knowledgeable physicians and that this may present a substantial barrier to family decision making and compassionate care for critically ill patients who lack capacity and have not prepared an advance directive. The similarities between this set of circumstances and the challenges of practicing neonatology under the Baby Doe rules is a stark one that I will discuss in the next section of this commentary. I will now address some conclusions suggested by this research. First, the good news is that, in general, a majority of physicians (75 percent) are not extremely defensive about legal risks in their practice. Second, as physicians acquire additional clinical experience they appear to become less defensive about the law. Third, among the minority of physicians (25 percent) reporting attitudes of extreme legal defensiveness, taking time to study the relevant law may decrease defensiveness. Fourth, it is important for physicians to rely only on sources of legal information that are reliable. Fifth, physicians in the US may be more defensive about medical-legal issues than their European counterparts. Sixth, and more troubling, identifiable physician characteristics may be associated with taking positions about futility and/or legal risk that could minimize patient and family self-determination. Seventh, anticipation of possible conflict with patients and family may cause physicians’ analysis of decisions be skewed toward maximum flexibility on the part of physicians to the exclusion of patient and family interests. Eighth, recognized differences in state laws can change actual legal risk and also have significant effects on perceived legal risk. Ninth, physicians’ perceptions of legal risk and its impact on medical decision making is S. Van McCrary / Neonatology and the specter of the law 77 a highly complex phenomenon that does not always conform to expectations of rational behavior. Finally, extreme clinical reactions to perceptions of law on the part of physicians – either being extremely concerned about legal risk or not concerned at all – may present substantial obstacles to patient self determination. 5. Comparing legal risk in the practice of neonatology versus adult medicine My experience suggests that even among neonatologists there is a substantial range of legal defensiveness, but that the baseline for defensiveness is higher in neonatologists than among critical care physicians in general. That is to say, primarily because of the Baby Doe rules, neonatal practitioners as a whole have greater sensitivity to the legal risks of terminating life-sustaining treatment and tend to modify their practice accordingly, sometimes in conflict with their best medical judgment and parental assessments of patients’ best interests. This