Informed Consent

AuthorJeffrey Wilson
Pages857-860

Page 857

Background

The doctrine of "informed consent" within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure (e.g., Slater v. Baker and Stapleton).

Within the United States, the seminal case is generally accepted to be that of Schloendorff v. Society of New York Hospital, 211 NY 125 (1914). In that case, involving allegations of unauthorized surgery during an exploratory examination, Justice Cardozo's oft-quoted opinion was that "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." The court further described the offense as a "trespass" (upon the patient's body and self).

However, requiring that the patient first consented was only half the task. The other half involved the patient's receipt of sufficient information upon which to make a sound decision. Thus, the concept of "informed consent" was developed on the premise of two distinct components: a person's inherent right to determine what happens to his or her body and a doctor's inherent duty to provide a person with enough information so as to ensure that the patient's ultimate decision is based on an appreciable knowledge of his/her condition, the available options for treatment, known risks, prognoses, etc. Importantly, this means that the patient does not have a duty to inquire about risks or options; the duty rests with the treating doctor.

From Common Law to Statute

Virtually all states recognize, either by express statute or common law, the right to receive information about one's medical condition, the treatment choices, risks associated with the treatments, possible outcomes, and prognoses. Generally, the law requires that medical information be in plain language terms that can readily be understood and in sufficient amounts such that a patient is able to make an "informed" decision about his or her health care. If the patient has received this information (and is otherwise competent to receive the information), any consent to treatment that is given will be presumed to be an "informed consent." A doctor who fails to

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obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense. In 1972, the American Medical Association (AMA) incorporated the concept of informed consent in its Patient's Bill of Rights movement, and almost all state versions of patient rights include provisions related to informed consent.

Application of the Doctrine

Typically, an "informed consent" issue arises when a patient suffers an injurious or harmful outcome from a treatment, surgery, or procedure. The harmful or injurious outcome does not appear to be the result of any negligence. The patient alleges that he or she was never informed of the possibility of occurrence of the resulting injury or harm.

From that point, the causative factor of the harm or injury must be analyzed. If the negative result (injury or harm) was a foreseeable complication or foreseeable risk, but the possibility of its occurrence had not been communicated to the patient in advance, there may be an actionable case of "lack of informed...

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