Abstract
Information is power, and because information sharing inevitably results in decision sharing, the doctrine of informed consent has helped transform the doctor-patient relationship. This is why informed consent is the most important legal doctrine in both the doctor-patient relationship and treatment in health care facilities. Not only is it important because of its implications for power and accountability, but it is also important because many of the other rights patients have are either derived from or enhanced by the doctrine of informed consent. The basic concept is simple: A doctor cannot touch or treat a patient until the doctor has given the patient some basic information about what the doctor proposes to do, and the patient has agreed to the proposed treatment or procedure. The overwhelming majority of Americans agree with this proposition, and the foundation on which it stands: People have a right not to have their bodies invaded without their approval because of their interests in bodily integrity and self-determination. Put more simply, it is the patient’s body. The patient is the one who must experience the invasion and live with its consequences. There is no obligation to accept any medical treatment, and it is remarkable that anyone ever considered it acceptable practice to treat a person without that person’s informed consent. Physicians have no roving mandate to treat whomever they believe may need their services.
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Notes
Pratt v. Davis, 118 Ill. App. 161, 166 (1905), affd, 244 Ill. 30, N.E. 562 (1906).
President’s Commission for the Study of Ethical Problems in Medicine and Biomedicai and Behavioral Research, Making Health Care Decisions (Washington, DC, Government Printing Office, 1982), at 2–3.
B. Siegel, Love, Medicine, and Miracles (New York: Harper & Row, 1986), at 52. Physicians may, however, seriously underestimate risks. See Kronlund & Phillips, Physician Knowledge of Risks of Surgical and Invasive Diagnostic Procedures, 142 West. J. Med. 565 (1985).
See, e.g., Andrews, Informed Consent Statutes and the Decisionmaking Process, 5 J. Legal Med. 163 (1984).
Schloendorff v. New York Hospital, 211 N.Y. 127, 129, 105 N.E. 92, 93 (1914).
E.g., Scott v. Wilson, 396 S.W.2d 532 (Tex. Civ. App. 1965).
See, e.g., J. Waltz & F. Inbau, Medical Jurisprudence, ch. 11, “Liability for Failure to Obtain ‘Informed Consent’ to Customary Therapy” (New York: Macmillan, 1971), at 152-68; Plante, An Analysis of “Informed Consent,” 36 Fordham L. Rev. 639 (1968); McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn. L. Rev. 381(1957); Note, Restructuring Informed Consent: Legal Therapy for the Doctor-Patient Relationship, 79 Yale L. J. 1533 (1970); Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L. J. 219 (1985); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960), reh’g denied, 187 Kan. 186, 354 P.2d 670 (1960); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1(1972); Canterbury v. Spence, 464 F.2d 772 (DC Cir. 1972), cert. denied, 409 U.S. 1064 (1972); Brown v. Dahl, 705 P.2d 781 (Wash. App. 1985); Hook v. Rothstein, 316 S.E.2d 690 (S.C. Ct. App. 1984).
E. Crouch & R. Wilson, Risk/Benefit Analysis (Cambridge, Mass.: Ballinger, 1982).
G. J. Annas, L. H. Glantz & B. F. Katz, Informed Consent to Human Experimentation (Cambridge, Mass.: Ballinger, 1977), at 33–38.
Cobbs v. Grant, 8 Cal. 3d. 229, 502 P.2d 1(1972). Patient dependency and physician control is also reinforced by the setting of doctor-patient interactions in which the doctor may stand, fully clothed, while the patient is lying down, often clothed only in a johnny, in a hospital bed. See J. Stoeckle, ed., Encounters Between Patients and Doctors (Cambridge, Mass.: MIT Press, 1987).
J. Katz, The Silent World of Doctor and Patient (New Haven, Conn.: Yale U. Press, 1984).
E.g., Trogun v. Fruchtman, 58 Wis. 2d 569, 207 N.W. 2d 297 (1973).
E.g., Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957).
E.g., Canterbury v. Spence, Cobbs v. Grant, supra note 7.
Cobbs, supra note 7.
Cf Salgo, supra note 13. On AIDS testing, See R. Bayer, Private Acts, Social Consequences: AIDS and the Politics of Public Health (New York: Free Press, 1989), at 101–68.
Hunter v. Brown, 4 Wash. App. 899, 484 P.2d 1162 (1971), affd, 81 Wash. 2d 465, r2 r.2d 194(1972).
In Sullivan v. O’Conner, 363 Mass. 579, 296 N.E.2d 183 (1973). The patient, a female entertainer, sued her physician, who she alleged had guaranteed her that her nose would be gracefully shaped following surgery. In fact, it became more grossly disfigured. She was awarded damages on the theory that the doctor had entered into a contract with her to alter her nose for the better and had guaranteed the results.
In Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971), the doctor had told a husband that a vasectomy was “a foolproof thing, 100 percent,” and the court held that this stated a cause of action against the doctor when the husband’s wife became pregnant. Here disclosure of the probability of success would seem critical, since the only purpose for having the procedure performed was complete sterilization. And see cases in Annot., 27 A.L.R.3d 906 (1969).
Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (1973).
Annas & Densberger, Competence to Refuse Medical Treatment: Autonomy v. Paternalism, 15 Toledo L. Rev. 561, 577 (1984).
Id. at 578.
Id. at 561-78. And see Applebaum & Grisso, Assessing Patients’ Capacity to Consent to Treatment, 319 New Eng. J. Med. 1635 (1988).
See Petition of Nemser, 51 Misc. 2d616, 273 N.Y.S.2d 624 (Sup. Ct. 1966).
Cobbs v. Grant, 502 P.2d 1, 12 (1972).
E.g., Karp v. Cooley, 349 F. Supp. 827 (S.D. Texas 1972), affd, 493 F.2d 408 (5th Cir. 1974), cert. denied, 419 U.S. 845 (1974) (involving the consent form for the first human artificial heart implant).
E.g., Valdez v. Percy, 35 Cal. App. 2d 485, 96 P.2d 142 (1939); Moore v. Webb, 345 S.W.2d 239 (Mo. 1961).
Rogers v. Lumbermens Mutual Casualty Co., 119 So. 2d 649, 652 (La. 1960).
Parikh v. Cunningham, 493 So. 2d 999 (Fla. 1986).
Cassileth et al., Informed Consent: Why Are Its Goals Imperfectly Realized?, 302 New Eng. J. Med. 896 (1980).
Making Health Care Decisions, supra note 2, at 105. Forms alone, of course, guarantee neither that useful information is conveyed nor that it is understood. See Byrne, Napier & Cuschieri, How Informed Is Signed Consent?,296 Brit. Med. J. 839 (1988) (27 percent of surgical patients who had signed consent forms did not know which organ had been operated on).
Tunkl v. Regents of University of California, 60 Cal. 2d 92, 94, 32 Cal. Rptr. 33, 34, 383 P.2d 441, 442 (1963).
O’Brien v. Cunard S.S. Co., 154 Mass. 272, 28 N.E. 266 (1891).
E.g., Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962).
G.J. Annas, Judging Medicine (Clifton, NJ: Humana Press, 1988), at 23–43.
This is based on the broad “police powers” that states have (and can exercise through their departments of public health) to protect the health and safety of the public.
Harper & James, The Law of Torts (1968 Supp.) sec. 17.1, at61. This remains the current rule. See Making Health Care Decisions, supra note 2.
John F. Kennedy Hospital v. Heston, 58 N.J. 576, 279 A.2d 670 (1971).
A typical release form is: I, [name], refuse to allow anyone to [treatment]. The risks attendant to my refusal have been fully explained to me, and I fully understand that I will in all probability need [treatment], and that if the same is not done, my chances for regaining normal health are seriously reduced, and that in all probability, my refusal for such treatment or procedure will seriously imperil my life. I hereby release the Hospital, its nurses and employees, together with all physicians in any way connected with me as a patient, from liability for respecting and following my express wishes and direction. The form will also contain a clause setting forth religious objections if that is the basis for the patient’s refusal.
See Mariner, Informed Consent in the Post-Modem Era, 13 Law & Social Inquiry 385, 405 (1988); and Meisel, A “Dignitary Tort” as a Bridge Between the Idea of Informed Consent and the Law of Informed Consent, 16 Law, Medicine & Health Care 210 (1988).
Physicians recognize that informed consent can be used educationally and can positively and powerfully affect a doctor-patient alliance or partnership to their mutual benefit. As Dr. Drummond Rennie has advised his physician colleagues: Physicians must do more than just “improve consent forms” but must see “education...as a worthwhile therapeutic goal…to give patients equality in the covenant by educating them [as a counselor and advocate] to make informed decisions” (Informed Consent by “Well-Nigh Abject” Adults, 23 New Eng. J. Med. 917, 918 [1980]).
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© 1992 George J. Annas and the American Civil Liberties Union
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Annas, G.J. (1992). Informed Consent. In: The Rights of Patients. Humana Press, Totowa, NJ. https://doi.org/10.1007/978-1-4612-0397-1_6
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