Section 4. Readings
The Origins of Informed Consent
The Origins of Informed Consent
- Currently, the doctrine involves a strong judicial deference to
- The notion is that a person should be free from non-consensual
interference with his or her person and should not be made to do something
against their will.
- The current philosophy was articulated by Judge Cardozo in Scholendorf
vs. Society of new
York Hospital: Every human being of adult years and sound mind has a
right to determine what shall be done with his own body….”
- The doctrine arguably serves several purposes:
- Protects individual autonomy
- Protects the patient’s status as a human being
- Avoids fraud and duress
- Encourages doctors to carefully consider their decisions
- Fosters rational decision making by the patient.
- Involves the public generally in medicine.
- Development of the doctrine falls into roughly three periods
- Until the mid-twentieth century – based on the law of battery with
little more disclosure required than what procedure was being proposed.
- A period of emerging belief that the procedures, risks, alternative
procedures and their risks should be disclosed.
- The current period since the early 1970’s of legislative entrenchment
and judicial inertia, meaning nothing is happening beyond the common law
development of the prior period.
- The Legal Framework
- Focuses on a touching other than that which for which consent was
- There is no need of expert testimony. There is no standard of care as
in the law of negligence.
- The only proof required is that the touching was different then that
for which consent was obtained.
- Negligent Non-Disclosure
- Focuses on the physician’s duty to inform
- The specific issue is what should the physician told the patient.
This is typically established through expert medical testimony.
- The proof is whether a reasonable person in the patient’s position
would have consented to the treatment or procedure had the proper
information been disclosed.
- Negligence as the Basis for Recovery –
- Two Standards Described by the Court
- Professional Custom Rule – What is the custom of physicians in the
locality in disclosing information to the patient.
- Patient Oriented Rule – Was sufficient information disclosed so that
the reasonable patient can make and informed decision.
- The Court in
Canterbury rejected that professional custom rule because (i) what is
perceived to be custom may be no custom at all, (ii) the physician
deciding what to disclose is contrary to concepts of patient autonomy and
(iii) the rule is self-serving.
- The court test: A risk should be disclosed if it is material, and it
is material when a reasonable person, in what the physician knows or
should know to be the patient’s position, would be likely to attach
significance to the risk or the cluster of risks in deciding whether or
not to forego the proposed therapy.
- Problems with this approach
- Who measures what is a reasonable patient?
- Are we not placing the judgment of the physician back into the
equation at the expense of the patient?
- Disclosure of Physician Specific Information – Johnson
- The question is whether a physician must disclose information
specific to his or her experience
- In this case, the court, noting the specific facts and circumstances,
held that a reasonable person in the patient’s position should be told
bout these issues in order to make and informed decision concerning
whether to have the proffered treatment.
- Disclosure of Statistical Mortality Information – Arato
- Plaintiffs claimed that specific statistical survival information
should have been disclosed so that decedent could have made an informed
decision on chemo and radiation therapy.
- Inference is that the patient would have made a choice of foregoing
the rigors of essentially experimental therapy when it would probably have
done little good.
- A claim was also made that lack of financial information caused
personal financial loss which could have been avoided.
- Court agreed that on the issue of the medical impact of failure to
provide informed consent, but said personal financial consequences were
not a part of the doctrine and there could be no recovery.
- Disclosure of Risks of Non-Treatment – Truman
- Facts: Physician allegedly failed to inform a patient of the material
risks of not consenting to a recommended pap smear, so patient was unable
to make an informed choice, resulting in the patient’s death form cervical
- The court found against the physician for failing to provide that
- The physician argued the patient should have taken the initiative to
- Issues raised by the decision.
- How far do the “fiducial duties” of the physician extend in providing
information to the patient?
- How aggressive should the physician be in insisting that the test be
- Where does the physician’s responsibility end and the patient’s begin?
- What is the role of the element of cost, if any?
- Disclosure of Physician Conflicts of Interest – Moore
vs. Regents of the
University of California
- Patient tissue, fluids, etc. were collected over time and utilized to
do research and ultimately to formulate a product which was patented for
which defendants received significant payment, all without any knowledge
of the patient.
- The patient when he found out sued for breach of a physician’s
fiduciary duty and lack of informed consent.
- Court found that the appropriate physician duties had been breached,
but found no recovery for conversion of property.
- Causation Complexities –
- Issue: There must be a causal connection between the failure to
disclose information and the damage to the patient.
- The court stated the rule to be that a causal connection exists when,
but only when, disclosure of significant risks incidental to treatment
would have resulted in a decision against the procedure.
- The standard: What a prudent person in the patient’s position would
have decided if suitably informed of all perils bearing significance.
- What is significant?—what percentage of risk should be involved?
- What is the role of the patient’s testimony since it will be
retrospective in time?
- Exceptions to the Duty to Disclose –
- Consent is implied when a patient unconscious or otherwise unable to
consent and harm of failure to treat outweighs harm of proposed treatment.
- Therapeutic Privilege is used when the risk of disclosure poses such a
threat of detriment to the patient as to become unfeasible or
contraindicated from a medical point of view.
- Consent Forms and The Hospital
- Informed consent is generally the responsibility of the treating
- Hospitals generally obtain consents for routine admitting tests and
- The consent form is usually evidence of consent, not a conclusive
contract or statement. It can be attacked by the patient.
- The essence of informed consent is the communication between the
physician and patient. The form simply memorializes that something
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© Copyright Philip A. Pecorino 2002. All Rights
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