Abstract
This book formulates the term “alternatives” in a wide fashion. It is categorised into four groups: (1) available treatment options; (2) legally, financially or geographically unavailable treatment options; (3) alternative providers; (4) choices between conventional medicine and CAM. First, the majority of “alternatives” are “treatment options”. Second, treatment options, which are medically available, may in fact be unavailable because of non-medical (legal, financial and geographical) factors. That raises the issue of whether to disclose legally, financially or geographically unavailable treatment options. Third, a doctor’s inexperience in performing a complex procedure might expose the patient to additional risks, leading to the notion that a patient has a right to be informed of the option of having the procedure performed by alternative (more experienced) practitioners or in a better-equipped and better-staffed institution. Fourth, with the increasing prevalence of CAM, there is a pressing issue of whether a practitioner has a duty to inform about alternative therapies that are beyond the scope of their variety of “medicine”.
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- 1.
Gallant v. U.S., 392 F.Supp.2d 1077, 1081 (D. Alaska, 2) (defining “treatment” as “the action or manner of treating a patient medically or surgically”).
- 2.
Gallant v. U.S., 392 F.Supp.2d 1077, 1081 (D. Alaska, 2) (defining “procedure” as “a particular course of action”). Assignment of a hospital patient to a room with another patient does not qualify as a “treatment or procedure,” requiring informed consent. See, Gallant v. U.S., 392 F.Supp.2d 1077 (D. Alaska, 2) (patient alleging that hospital assigned her to hospital room with another patient who was HIV-positive, exposing her to HIV/AIDS).
- 3.
Gates v. Jensen, 595 P.2d 919, 922–923 (Wash. 1979) (“The patient’s right to know is not confined to the choice of treatment once a disease is present and has been conclusively diagnosed. Important decisions must frequently be made in many non-treatment situations in which medical care is given, including procedures leading to a diagnosis…”).
- 4.
I am still struggling to find a good term to comfortably embrace all of the above-mentioned alternatives. The Health and Disability Commissioner of New Zealand adopted the term “alternative management options” to include “the option of having the surgery performed by another surgeon (whether in private or public)” (emphasis added). See, Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions). Obviously the term “management options” is more encompassing than the term “treatment options”, but it still needs to see if it is broad enough to cover all those alternatives formed on the basis of providers, location, legality and financial feasibility.
- 5.
- 6.
One commentator invented the term “unreadily available alternatives” to encompass four categories of alternatives: geographical, institutional, experimental, and financial. See, Note, Halle Fine Terrion (1993), 493.
- 7.
Kalsbeck v. Westview Clinic, P. A., 375 N. W. 2d 861, 869 (Minn. App. 1985) (the doctrine of informed consent applies “only to situations where the choice is between two or more distinct, alternative methods of treatment” and does not apply to “situations where the patient’s decision is whether to submit to treatment in addition to the basic treatment given” (emphasis added)); Madsen v. Park Nicollet Medical Center, 431 N.W. 2d 855, 861 (Minn. 1988) (the court denied the application of informed consent rule to the case by highlighting the “identical”, rather than distinct, nature of the two options); Masquat v. Maguire, 638 P. 2d 1105, 1106–1107 (Okla. 1981) (the difference between treatments should be “significant” or “go to the nature” of a procedure); Matthies v. Mastromonaco, 733 A. 2d 456, 463–464 (N. J. 1999) (noting that the physician’s duty to inform the patient of alternatives is especially important when the alternatives are mutually exclusive; and, if, as a practical matter, the choice of one alternative precludes the choice of others, or even if it increases appreciably the risks attendant on the other alternatives, the patient’s need for relevant information is critical).
- 8.
See, Matthies v. Mastromonaco, 733 A. 2d 456, 463–464 (N. J. 1999) (observing that the patient’s need for relevant information intensifies when the choice turns not so much on purely medical considerations as on the choice of one lifestyle or set of values over another).
- 9.
Spencer By and Through Spencer v. Seikel, 742 P.2d 1126, 1129 (Okl. 1987). This case involved a child born with virtually no brain. The plaintiff’s argument that the defendant failed to inform her of the option of abortion when the 23 or 24-week-old fetus was discovered to be suffering from hydrocephalus was rejected by the Supreme Court of Oklahoma on the basis that, when the defendant first discovered hydrocephalus, the fetus had reached the viability stage, and therefore abortion was not a legally available option for the mother, under the Oklahoma statute, unless the mother’s life or health was in danger. The patient also argued that, even if abortion was forbidden by Oklahoma statute once the fetus was viable, because physicians in Oklahoma must conform to national, not local, standards of care in treatment of patients, the physician should inform her that an abortion might be available and performed in other states (outside Oklahoma). The court held that “[n]ational standards are applicable in measuring the standard of medical care physicians owe their patients in rendering treatment to them” (emphasis added).
- 10.
Schiff v. Prados, 92 Cal.App. 4th 692, 112 Cal.Rptr.2d 171(Cal.App. 1 Dist. 2001).
- 11.
The child patient suffered from a malignant rhabdoid tumor, a rare and aggressive form of cancer, in her brain and around her spinal cord. There was a surgery on the tumor, most of the tumor was removed, but residual tumor remained in the brain and around the spinal cord. After the surgery, only two options were presented to the plaintiffs: having the child undergo intensive chemotherapy and radiation, or “taking her home and letting her die”. The defendants proposed and recommended aggressive chemotherapy and radiation for the child. Although the plaintiffs made it clear that they were interested in knowing of “any alternative treatment or options that might possibly be advantageous to [their] daughter” in addition to radiation and chemotherapy which, they think, would be very difficult to the child, the defendants responded that none of them knew of any appropriate alternative treatments.
- 12.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 177 (Cal.App. 1 Dist. 2001).
- 13.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 178 (Cal.App. 1 Dist. 2001). One expert even indicated that the defendant’s failure to disclose the availability of antineoplastons at tumor board discussions of the patient’s case “would be regarded by the average physician as morally offensive and unethical.”
- 14.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 178 (Cal.App. 1 Dist. 2001).
- 15.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 178 (Cal.App. 1 Dist. 2001).
- 16.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 178 (Cal.App. 1 Dist. 2001) (emphasis added).
- 17.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 180 (Cal.App. 1 Dist. 2001) (emphasis added).
- 18.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 179 (Cal.App. 1 Dist. 2001).
- 19.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 179 (Cal.App. 1 Dist. 2001).
- 20.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 180 (Cal.App. 1 Dist. 2001).
- 21.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 182 (Cal.App. 1 Dist. 2001).
- 22.
Schiff v. Prados, 112 Cal.Rptr.2d 171, 173 (Cal.App. 1 Dist. 2001) (emphasis added).
- 23.
Thibault v. Fewer, [2002] 1 W.W.R. 204, 217, at [61] (“[T]he decision with respect to the financial consequences of choosing to undergo a procedure outside of the patient’s province of residence should be left with the patient. The physician should provide the relevant information. The final decision remains that of the patient, after consideration of all factors, including cost.”).
- 24.
Skeels (Estate of) v. Iwashkiw, [2006] 11 W.W.R. 632, 659, at [157] (Court of Queen’s Bench of Alberta).
- 25.
Johnson By Adler v. Kokemoor, 545 N.W. 2d 495, 508–510 (Wis. 1996) (“Given the difficulties involved in performing the surgery at issue in this case, coupled with evidence that the defendant exaggerated his own prior experience while downplaying the risks confronting the plaintiff, the circuit court properly exercised its discretion in admitting evidence that a physician of good standing would have made the plaintiff aware of the alternative of lower risk surgery with a different, more experienced surgeon in a better-equipped facility.” (emphasis added)).
- 26.
Barriocanal v. Gibbs, 697 A.2d 1169, 1172 (Del. Supr., 1997) (involving a doctor’s failure to inform his patient of his lack of recent aneurysm surgery, of the difference in hospital staffing on a holiday, and of the option of transfer to a teaching institution).
- 27.
Madsen v. Park Nicollet Med. Ctr., 431 N.W.2d 855, 861 (Minn. 1988) (finding that “the option of hospitalization was not an alternative but was rather an additional available treatment”; “Whether [the patient] was or was not hospitalized, her treatment would have been the same in either place and with the same risks. Any choice would affect only the situs of the patient’s care, not the care itself. … [T]he home treatment was identical to that available in the hospital.” (emphasis added)).
- 28.
Estate of Lapping v. Group Health Co-op. of Puget Sound, 892 P.2d 1116, 1123 (Wash. App. Div. 2, 1995) (asking “whether a rational trier of fact could have found, by a preponderance of evidence, that a reasonably prudent person in [the patient’s] position would have attached significance to the fact that the endometrial biopsy could have been done in a hospital with more equipment and greater precautions than were available in the clinic.”(emphasis added)); Martin by Scoptur v. Richards, 531 N.W.2d 70, 80–81 (Wis. 1995) (agreeing that the plaintiff would attach significance to the undisclosed information, and, had he been informed of those information, would have agreed to seek the alternative forms of care and treatment, i.e. to have a CT scan done, and to take the patient to another hospital with a neurosurgeon).
- 29.
For example, Schiff v. Prados, 112 Cal.Rptr.2d 171, 173 (Cal.App. 1 Dist. 2001) (holding that an unconventional treatment that cannot legally be administered in a state is not ‘available’ within the meaning of the informed consent rule).
- 30.
See, Canada: C.C.W. v. Ontario Health Insurance Plan, 2009 CanLII 712 (ON S.C.D.C.); 305 D.L.R. (4th) 538; Flora v. Ontario Health Insurance Plan, 2008 ONCA 538; 295 D.L.R. (4th) 309; Cameron v. Nova Scotia (Attorney General), 1999 CanLII 7243 (NS C.A.); 177 D.L.R. (4th) 611.
- 31.
G K D Crozier, Françoise Baylis (2010) (raising and exploring the question of “What role should physicians in more-developed home countries play in promoting or constraining international medical travel towards less-developed destination countries?”).
- 32.
Johnson By Adler v. Kokemoor, 545 N.W. 2d 495 (Wis. 1996).
- 33.
Johnson By Adler v. Kokemoor, 545 N.W. 2d 495, 498 (Wis. 1996) (“[I]nformation regarding a physician’s experience in performing a particular procedure, a physician’s risk statistics as compared with those of other physicians who perform that procedure, and the availability of other centers and physicians better able to perform that procedure would have facilitated the plaintiff’s awareness of ‘all of the viable alternatives’ available to her and thereby aided her exercise of informed consent.”). See also, Goldberg v. Boone, 912 A.2d 698, 717 (Md. 2006) (holding that it was the combination of the patient’s special condition, which elevated the complexity of the procedure, with the fact the defendant had a very limited experience in performing the procedure, that “gave rise to [the defendant’s] duty to inform [his patient] that there were other more experienced surgeons in the region that could perform the procedure” (emphasis added)).
- 34.
Some examples are: Foard v. Jarman, 326 N.C. 24, 31, 387 S.E.2d 162 (1990) (no affirmative duty for health care provider to discuss his or her experience where provider perforated patient’s stomach wall while performing gastroplasty, resulting in severe complications, including renal failure); Duttry v. Patterson, 565 Pa. 130, 136, 771 A.2d 1255 (2001) (the fact that defendant indicated to patient that he had performed procedure approximately once a month when defendant in fact had performed procedure nine times previously is “evidence of a physician’s personal characteristics and experience [that] is irrelevant to an informed consent claim”). See also, DeGennaro v. Tandon, 873 A.2d 191, 197 (Conn. App. 2), footnote 4; Abram by Abram v. Children’s Hosp. of Buffalo, 542 N.Y.S.2d 418 (N.Y.A.D. 4 Dept., 1989); Ditto v. McCurdy, 947 P.2d 952, 958 (Hawai‘i, 1997); Whiteside v. Lukson, 947 P.2d 1263, 1265 (Wash. App. Div. 3, 1997); Duttry v. Patterson, 771 A.2d 1255, 1258 (Pa., 2001).
- 35.
The Kokemoor case involved a complex surgery – basilar bifurcation aneurysm surgery. The complexity of the surgery dictates that a surgeon’s experience or success rate genuinely matters. Less complicated procedures or “routine uncomplicated surgery” could not invite the Kokemoor rule. See, Jalowitz v. Physicians Insurance Company of Wisconsin, Inc., 691 N.W.2d 926 (Table) (Wis. App. 2004), at [41] (involving “a relatively simple surgery for a trained cardiac surgeon”).
- 36.
The Kokemoor case involved a scenario that, due to the complex nature of the surgery, different physicians have substantially different success rates in performing the surgery. Under such a scenario, whether surgery is performed by one rather than another represents a choice between “alternate, viable medical modes of treatment”. Under such circumstances, the accurate physician-specific information was shown to be material because it was evidence of greater risk of the proposed treatment. See also, Jalowitz v. Physicians Insurance Company of Wisconsin, Inc., 691 N.W.2d 926 (Table) (Wis. App. 2004), at [42] (holding that there was no evidence that the “morbidity and mortality rate expected when a surgeon with the defendant’s experience [or background] performed the surgery would be significantly higher than the rate expected” when any other trained cardiac physician performed the same surgery); Prissel v. Physicians Insurance Company of Wisconsin, Inc., 674 N.W.2d 680 (Table) (Wis. App. 2003), at [36].
- 37.
DeGennaro v. Tandon, 873 A.2d 191, 200 (Conn. App. 2). See also, Wlosinski v. Cohn, 713 N.W.2d 16, 25 (Mich. App., 2) (Borrello, J. dissenting) (“It is axiomatic that a reasonable patient would find information regarding a kidney transplant surgeon’s statistical success and failure rates for kidney transplants to be material in making the decision whether to proceed with a surgical procedure as serious as a kidney transplant. Moreover, [the doctor] had a duty to supply such information regardless of whether the decedent sought to elicit such information.”(emphasis added)).
- 38.
Evidence adduced at trial in the Kokemoor case established that surgeons with much more experience and higher success rate, and a “tertiary care facility”, which contain the proper neurological intensive care unit and microsurgical facilities staffed by neurosurgeons with the requisite training and experience to perform basilar bifurcation aneurysm surgeries, were available and in relatively close proximity (such as Mayo Clinic, only 90 miles away) to the hospital in which the defendant intended to perform the surgery. The unavailability of an alternative provider/more experienced, more competent provider has been used as a distinguishing factor in citing Kokemoor, and may constitute an excuse for a court’s denial to encompass disclosure of a provider’s experience in the context of informed consent. See, Jalowitz v. Physicians Insurance Company of Wisconsin, Inc., 691 N.W.2d 926 (Table) (Wis. App. 2004), at [43] (no evidence that a more qualified surgeon or facility was available); Prissel v. Physicians Insurance Company of Wisconsin, Inc., 674 N.W.2d 680 (Table) (Wis. App. 2003), at [37] (no evidence that another experienced cardiovascular surgeon was available to perform the surgery or that another cardiovascular surgeon was available to assist).
- 39.
Johnson By Adler v. Kokemoor, 545 N.W. 2d 495, 506–507 (Wis. 1996) (establishing that a reasonable patient in the plaintiff’s position, if accurately apprised of all the risks, would have declined surgery from the defendant-doctor and the undisclosed risk actually materialized and was caused by the treatment); Howard v. University of Medicine, 800 A.2d 73, 85 (N.J. 2002) (offering a two-prong test for establishing causation when doctors misrepresent their experience: (1) whether the more limited experience or credentials possessed by the doctor could have substantially increased the patient’s risk; and (2) whether that substantially increased risk would cause a reasonably prudent person not to consent to undergo the procedure). Because a provider-specific information disclosure case normally already involves a gap or difference in risk factors between a more risky provider and a less risky provider, compared to the ordinary risk information disclosure case where the risk-benefit balance between two options is relatively unclear, it is relatively easier for the plaintiff-patient to succeed in establishing both decision causation and injury causation in the context of provider-specific information disclosure. See, Aaron D. Twerski and Neil B. Cohen (1999), 12–17.
- 40.
The Kokemoor case involved the defendant-surgeon’s overstatement about his rather limited experience with the particular type of aneurysm surgery and understatement about the morbidity and mortality rate associated with the contemplated surgery. In medical context, because misrepresentation normally invites battery argument, the courts showed caution in characterizing a physician’s words or conduct as misrepresentation. The law should do something to blame dishonest physicians. Compared to other avenues for addressing liability, informed consent is more lenient and friendly for defendant-physicians.
- 41.
The Kokemoor case involved an inquisitive patient. Some courts did draw a distinction between the proactive aspect and the reactive aspect of the duty to inform in the context of provider-specific information disclosure, making it clear that, although a physician did not have to volunteer personal information to patients, he should give truthful and accurate answers when a patient affirmatively questioned the physician about his competence, experience and expertise. The materiality of information is more obviously demonstrated when a patient makes an affirmative inquiry about a physician’s personal information. See, Brad M. Rostolsky (2002), 556–557. Also see, Kaskie v. Wright, 589 A. 2d 213 (Pa. Super. 1991) (The patient did not ask the physician about his prior surgical experience. The superior court held that a physician did not have to voluntarily reveal his level of experience.).
- 42.
Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); [1980] 2 S.C.R. 192; Turner v. Bederman, 1996 CarswellOnt 1766, 2 O.T.C. 215, at [12].
- 43.
Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); [1980] 2 S.C.R. 192, at [22]. The routine nature of operation dictates that there is no need for the patient to be referred and transferred to a better-staffed facility.
- 44.
Turner v. Bederman, 1996 CarswellOnt 1766, 2 O.T.C. 215; Halkyard v. Mathew, 2001 CarswellAlta 273, 2001 ABCA 67, 4 C.C.L.T. (3d) 271, [2001] 7 W.W.R. 26, 277 A.R. 373, 242 W.A.C. 373, 91 Alta. L.R. (3d) 201. In Stefanyshyn v. Rubin (1996), 34 C.C.L.R. (2d) 88 (Man. C.A.), a doctor’s failure to wear prescribed eyeglasses during surgery was considered not in the context of information disclosure, but in the context of negligent treatment.
- 45.
The case involved an allegation that the defendant-surgeon failed to disclose his personal medical condition (epilepsy) to a patient, which “might have a bearing on the patient’s decision to have or not have the surgery by the attending surgeon”. Apparently deeply moved by the arguments revealed in an academic article (B. R. Furrow “Must Physicians Reveal Their Wounds?” (1996) 5 Cambridge Quarterly of Healthcare Ethics 204, 211), the Alberta Court of Queen’s Bench concluded that
[the defendant-surgeon] was not obligated to disclose to [the patient] his personal medical history. … It is the duty of [the defendant’s] personal physician to determine whether [the defendant] can continue doing surgery. It is also the duty of the hospital to determine whether [the defendant] or any other doctor performing surgery in its hospital can continue his or her practice in that hospital if the doctor, for whatever reason, is not capable of performing surgery. It is also the duty of any doctor to determine if he or she can continue their medical responsibilities when a physical or mental incapacity exists. (emphasis added)
See, Halkyard v. Mathew, 1998 CarswellAlta 822, 43 C.C.L.T. (2d) 171, 67 Alta. L.R. (3d) 174, [1999] 5 W.W.R. 643, 231 A.R. 281, [1998] A.J. No. 986, at [18].
- 46.
Turner v. Bederman, 1996 CarswellOnt 1766, 2 O.T.C. 215, at [11] (“Canadian courts have distinguished between the risks attending the procedure and the risks attending the physician” (emphasis in the original)).
- 47.
Skeels (Estate of) v. Iwashkiw, [2006] 11 W.W.R. 632, 658 at [149] (Court of Queen’s Bench of Alberta).
- 48.
In Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); [1980] 2 S.C.R. 192 (at [36], [38]), the Supreme Court indicated a lack of “decision causation” by noting that “the record does not support a conclusion that the plaintiff had made the question of the place of performance of the operation central to his consent” (emphasis added). The Court also touched “injury causation” by holding that a suggestion that the patient might possibly have suffered less damage if he had gone to Calgary in the first place was “highly conjectural and cannot form the basis of a judgment for the patient”. See also, Halkyard v. Mathew, 2001 CarswellAlta 273, 2001 ABCA 67, 4 C.C.L.T. (3d) 271, [2001] 7 W.W.R. 26, 277 A.R. 373, 242 W.A.C. 373, 91 Alta. L.R. (3d) 201, at [9] (holding that at least where the provider-specific information has no nexus to the injuries suffered by the patient, the courts did not think that a physician has a duty to disclose his personal information); Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); [1980] 2 S.C.R. 192, at [7] (noting that it would be ridiculous to require a licensed specialist to tell a patient (at least without being asked) how many operations of the kind in question he had performed when it was clear that he was not inexperienced); Halkyard v. Mathew, 1998 CarswellAlta 822, 43 C.C.L.T. (2d) 171, 67 Alta. L.R. (3d) 174, [1999] 5 W.W.R. 643, 231 A.R. 281, [1998] A.J. No. 986, at [9], [12] and [13] (finding that there was no misrepresentation or fraud in the part of the defendant because there is no evidence to indicate he was covering up his personal medical condition to obtain her consent to the surgery).
- 49.
Turner v. Bederman, 1996 CarswellOnt 1766, 2 O.T.C. 215, at [11](emphasis in the original) (citing Reibl v. Hughes, [1980] 2 S.C.R. 880, 884–886: “The relationship between surgeon and patient gives rise to a duty of the surgeon to make disclosure to the patient of what I would call material risks attending the surgery which is recommended.” The duty of the doctor “relates to the specific risks within the surgeon’s knowledge peculiar to the contemplated treatment.” (emphasis added by the Turner court)).
- 50.
Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); [1980] 2 S.C.R. 192, at [7].
- 51.
Chappel v. Hart [1998] HCA 55; (1998) 195 CLR 232;156 ALR 517; (1998) 72 ALJR 1344 (HC of A). In this case, the patient alleged that if she had been properly warned of the risk in question, she would have delayed the surgery and had it performed by the most experienced surgeon in the field. The court decided by a majority of three to two that the patient was entitled to recover substantial damage from the surgeon for the physical injuries suffered as a result of the operation performed on her. The majority opinion stressed that the skills of a more experienced surgeon would have reduced the risk of the kind of injury that occurred. The Ipp report and some Civil Liability Acts, which have implemented the recommendations of the Ipp report in various states and territories, have clarified the law on causation in Australia. For example, in New South Wales, s 5D of Civil Liability Act 2002 (NSW) stipulates the general principles on causation:
(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a)the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
S 5E of Civil Liability Act 2002 (NSW) lays down the rule about the onus of proof of causation: “In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.” Similar formulations concerning the determination of causation and the onus of proof of it are also evident in Wrongs Act 1958 (Vic) (s 51, s 52); Civil Law (Wrongs) Act 2002 (ACT) (s 45, s 46); Civil Liability Act 2002 (Tas) (s 13, s 14); Civil Liability Act 2002 (WA) (s 5C, s 5D); Civil Liability Act 2003 (QLD) (s 11, s 12); Civil Liability Act 1936 (SA) (s 34, s 35).
- 52.
Wheeldon v. Madison, 374 N.W.2d 372, 376 (S.D. 1985).
- 53.
There are two lines of views about this. One line of view argues that a cause of action for lack of informed consent can only be allowed in the context of “some affirmative violation of plaintiff’s physical integrity”. See, Smith v. Fields, 702 N.Y.S.2d 364, 366 (N.Y.A.D. 2 Dept. 2000). Another line of opinion leaves open the possibility that a negligent nondisclosure action can be brought where injuries result from nontreatment rather than affirmative treatment. See, Gates v. Jensen, 595 P.2d 919, 922–923 (Wash. 1979) (“[t]he existence of an abnormal condition in one’s body, the presence of a high risk of disease, and the existence of alternative diagnostic procedures to conclusively determine the presence or absence of that disease are all facts which a patient must know in order to make an informed decision on the course which future medical care will take” (emphasis added)).
- 54.
Keogan v. Holy Family Hospital, 622 P. 2d 1246, 1254–1255 (Wash. 1980) (emphasis added).
- 55.
Wheeldon v. Madision, 374 N. W. 2d 367, 375 (S.D. 1985) (emphasis added). See also, Truman v. Thomas 611 P.2d 902 (Cal. 1980). In this case, the respondent physician had recommended to the appellant’s mother that she submit to a pap smear test, but there was evidence that the patient refused to undergo the test and that respondent did not inform her of its purpose or of the risks involved in her refusal to submit to it. The patient subsequently died of cervical cancer. As the Supreme Court of California clarified in the final part of its opinion, this case did not involve a physician’s failure to recommend an appropriate test, but involved a physician’s failure to “inform a patient of the risks entailed in refusing to follow his advice”. The Court held that the physician must inform the patient of the risks involved in refusal to undergo the proposed diagnostic tests.
- 56.
Jacobs v. Painter, 530 A.2d 231, 236–237 (Me. 1987) (emphasis added).
- 57.
Lotocky et al v. Markle et al, 2006 BCSC 1295, at [188].
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Zhao, X. (2012). Categorisation of Alternatives. In: The Duty of Medical Practitioners and CAM/TCM Practitioners to Inform Competent Adult Patients about Alternatives. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31647-0_5
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