Piobiems of Consent in Medical Treatment
| Author | By Major Thomas A. Knapp |
| Pages | 02 |
Every human being of adult ream and aound mind has a right to dstwmine what shall be done with hzs own body; , . , .I I. INTRODUCTION
Under normal circumstances a physician cannot legally undertake surgery or other medical procedures without first obtaining the consent of his patient. Xoreouer, a general or "blanket" con-sent is insufficient becauae the typical patient is ignorant of medical practice and will therefore be unaware of the caliateral risks in most proposed therapies unless he is advised of them inadvance by his physician. After such advice, the patient's decision to proceed with treatment, despite the risks disclosed to him, is the product of his informed consent.
Presented in this manner, informed consent is a deceptively simple proposition which nonetheless haa fostered a great deal af confusion and generated much litigation. This article will briefly examine the history and background of the theory of informed consent and then address the more specific problems: the nature of consent with emphasis on the consent form, what constitutes an emergency, and the emergency doctrine as it applies to consent.
Sehloendorff V. Society of New York Honp., 211 N.Y. 125, 128, 105N.E. 92, sa (1814).
Subsequently, the article will analyze the provisions for compulsory medical treatment of the adult as apposed to the quailfied right of the adult to refuse medical care nith emphasis 011 the military's position and the Constitutional implications of compulsory adult medical treatment.
A, HISTORY AVD BACKGROV.\-D OF CO.YSE.YT THEORY
The doctrine of informed consent originated in the dictum of a Vlrginla case. In Hunter F. Burroughs,' x-ray treatment had been used by the defendant physician m an attempt to cure the plaintiffs eczema. At the time, x-ray treatment was a new technlque and the physician failed to warn the patient of the risks involved in its use The patient suffered severe burns as a result of the treatment and sued his physician on two theories: (1) that the treatment had been administered m a negligent manner, and (2) that defendant had failed to fulfill his duty to warn his patient of the possible danger of adverse consequences. In affirming a judgment far the plaintiff, the appellate court found sufficient evidence to support the findings of negligent treatment and thus did not rule upon the issue af informed consent, However. in dictum the court analyzed this issue in terms which in later decisions became the theory of informed consent. The court affirmed the theory " . . . that it is the duty of a physician in the exercise of ordinary care to warn a patient of the danger of possible bad consequences of using a remedy. , .
The imposition of liability upon a physician for failing to dis-close the possible consequences of a medical procedure is of relatively recent origin. The modern doctrine of informed consent originated in the 1950's in Solgo v. Leland Stmlord Jmior Cniversity Board of Tmtees.' Plaintiff Salgo suffered paralysis following an aortography performed at Stanford L'niversity Hospital. One isme an appeal was a jury instruction on the doctor's duty to disclose to his patient the risks of the aortography.. The appellate court stated:
A physician violates his duty u, hia patient and subjects himself toliability if ha withholds m y facts which are necessary to form the baais af an mteilirent conrent by the oatiint to the nroiosed treat menl. Likewise the physician may naiminimize the kniwn dangers of a procedure or operation ~n order to induce his patient's consent.
~ 1 123 Va 113, 86 S.E. 360 (1918).3 Id. at 133. 96 S.E.at 86%.4 154 Cai. App. Id 500. 311 P.2d 170 (1861) 106
MEDICAL CONSENT
, , , One [alternative] is to expisin to the patient every ri& attendant upon any surgxal procedure or operation, no matter how remote; this may very well reiult I" alarming P patient who 18 al-ready unduly apprehensive and who may as a i e d t refuse to undertake iuigery m which there is in fact minimal risk: It may also remit in scmdly incrraring the rirkr by re__ ai the phy-iiiolopieal msuLta of the apprehension Itself. The other is to recog. nize thst each patient preaonts a separate problem, that the patient's mental and emotional condition is important and I" certain eases may be crucial, and thst in discussing the element of risk a certain %mount of discretion must be employed cansiatent with the full diaeiorvre of facts ne~eiiiaiy to an informed eonaent 8
Salgo WBB the first case to adopt this full disclosure model, but inso doing the court recognized the need for fiexibility in tailoring disclosure to the specific patient's needs.
The Sdgo opinion set the stage for the Kansas case of Natanaon v, Kldne.6 Irma Natansan, suffering from cancer of the breast, had undergone a radical left mastectomy. At the suggestion of the surgeon who performed that operation, she engaged a Dr. Kline for radiation therapy at the site of the mastectomy and the surrounding areas. After the operation, Mrs. Natanson exhibited sign of a severe injury to the skin cartilage and bone of her chest.
Mrs. Natanson alleged that Dr. Kline was negligent in two respects: (I) the administration of the therapy, and (2) his failure to warn Mrs. Natanson that the murse of treatment involved great risk of bodily injury or death, The jury found that Dr. Kline did not commit any negligent acts that proximately caused the plaintiffs injury. On the second allegation. conflicting evidence tended to show that Mn. Natanson fully understood the dangers and risks of the treatment, but Dr. Kline was unable to remember exactly what be had said to her. There was nothing to suggest that he had given her any warning, and Mrs. Natansan and her husband testified that Dr. Kline had not made any statements to them in the nature of a warning.
The trial court refused the plaintiff's request for an instruction on the issue of failing to warn the plaintiff. The appellate court held that the requested inatructian was too broad. Nevertheless. in describing the procedure to be followed on retrial, rhe court said :
. , . the Urat i i s w for the jury to determine should te whether the *dminmam of cobalt midiinon treatment w 1 ~
Id. et 678, 317 P.2d at 161.186 Kan. 393, 360 P.2d 1083; ?oh. dnkd. 187 Kan. 186, 354 P.2d 610 (1860).
failed in his iepal obligation IS gviiti af msiprmrice no matter haw skillfully the treatment may have been administered. and the i u v should decemnne r l i ~ damayes arising iron; the cohalr irradiiria 1trearmenl. If the jury should find that informed emienr was wrenby the patient for rvch treatment. the jury should next determine whether proper skill was vwd h administering the treatment'
The court'a opinion in .Ynta,tsoit seems to be based on a law review article by Professor Allen H. JIcCaid * and an the three cases which it cited.O One was an assault and batter? ease and the other two iniolved negligence. The court made the following 3taternent:
The C D ~ C ~ L I ~
to be draun from tire foremme cases 1s that uhere
. . unauthorized treatment.loIt is still not clear which theory the court was using because liability for uiieuthorued treatment, liability zit twt, and liability io7 malpractice were all mentioned in the opinion.
In describing the nature of the disclosure required to avoid liability, the court used different expressions, suggesting the rule requires "substantial disclosure" at one point, "reasonable disclosure" at another, and "full disclosure" at yet another. The case %-as retried and upon a second appeal the Kansas Supreme Court clarified its intention to decide the case on a negligence theory.
Another case establishing the doctrine of informed consent as a distinct theory af medicai liability is Mitchell u. Robimon." This decision was handed down two days after the issuance of the second opinion in Satanson. In M~tehell,the plaintiff consented
~
Id at 411, 360 P2d BL 1107.* Praiessar XcCorCa thesia, very briefly summarized, 1s tha~ the tradirional BImuIt and battery Bnaly$is, when applied to ~ a i e ~ involving vn-authorized medical treatment, is often aukuard li not err~nmu&:the az- rault and battery approach should be eanfined to those rdaiively iew ease8 in which the physician has engaged in intentional deviations from prac:ice not intended to be beneficial ta the patient: ather CBI~S rhouid be tried end decided on other principles. MeCoid, A Reapprramal 01 Lvlbilify la7 Cn-.rtiiuiiird .+isdicai ~ ~ e ~ i ~ ~ , ~ t .
41 YISX L. RE, 381 (15b71
" 186 Ken. at 404-05, 360 P 2d at 1102 The cited easel are Lester v Aetna Car. & Sur. Cu, 240 F.2d 676 (5th Cir. 1969) (aileged lack of ex-planation of hazards af eleerrarhoek treatment) : Bang ,. Charles T Miiier Hoip, 261 hllnn. 427, 83 N X. 2d 186 (1958) (operation on prmtafe which required severance of spermatic cards): Kenny V. Lockraad (1932) 1 D.L X607 11531) (Canada) ffallure to point out risks of hand surgery)
10 186 Kan. 81 406, 350 P.2d at 1103.'' l 3 i S T 7 :d 11 \lo 1960). rfd. 364 511 :d 6': \lo ,962.
MEDICAL CONSENT
to combined electro-shock and insulin subcoma therapy; as in Natanson, the proposed procedure was new and radical. A re-cognized statistical hazard of the proposed procedure was the possibility of fractured vertebrae, an injury which plaintiff, in fact, sustained although no disclosure had been made to plaintiff at any time concerning this hazard. The plaintiff alleged that if he had known of the dangers of the procedure he would not have consented to it. The court held, as a matter of law, that a physician or surgeon owes his patients a general duty to disclose all possible collateral hazards.12
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BATTERY VS. NEGLIGEIYCE CACSES OF ACTIOS
Law suits have been tried both on the theory of battery la and on the theory of negligence.1i The rules applicable to...
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