“Informed consent.” It’s a buzzword in the field of medical malpractice because so many malpractice lawsuits involve arguments about what the term really means. Just how much information must a doctor disclose to a patient before that patient can make an educated decision about how to pursue his or her own medical treatment? The answer to that question, like so many in law, is, “It depends.”
In the main, it will depend on what jurisdiction is reviewing the case. Currently, there are two standards governing what and how much information a doctor must disclose to a patient. The first is the physician-centered standard. This standard was first established in 1960 by the case of Natanson v. Kline. In that case, the patient received radiation therapy to prevent the relapse of her breast cancer. After she received serious injury directly resulting from the radiation therapy, the patient sued her doctor, claiming that he did not warn her of the risks of injury.
The standard the court used to decide this case was whether the physician “disclose[d] and explain[ed] to the patient in language as simple as necessary the nature of the ailment, the nature of the proposed treatment, the probability of success or of alternatives, and perhaps the risks of unfortunate results and unforeseen conditions within the body…” This language has since become the standard most courts use to determine what doctors must disclose to their patients before their patients may be judged to have given “informed consent.” The underlying policy in the law, as stated by the court, is “that each man is considered to be master of his own body.” Thus, it follows that “[a] doctor might well believe than an operation or form of treatment is desirable or necessary, but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.” Based on the foregoing, the court created the physician-centered standard by holding that the “duty of the physician to disclose…is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances” (emphasis added).
This standard from Natanson was the governing one everywhere in the US for twelve years, until three courts modified it in the early 70s to create the patient-centered standard. The first of these decisions was Canterbury v. Spence, wherein a patient consented to an invasive form of back surgery and was hurt by falling from his bed during recovery. The fall happened while the patient was left unattended, and, as a result of the fall, he was left paralyzed below the waist. The patient sued his doctor, claiming that the doctor negligently performed the operation and negligently failed to warn him that the operation could have resulted in paralysis.
Rejecting the physician-centered disclosure standard, the court found that doctors were required to disclose that which a reasonable patient would need to know to make an informed decision about the course of his or her treatment, as opposed to what a reasonable doctor would disclose. More specifically, the court ruled that “the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked” (emphasis added). This was further stated to be an objective standard, meaning that the question for any case where disclosure is at issue is what a reasonable person in the patient’s shoes, as opposed to the specific patient in question, would have done had he or she known all the risks involved.
This decision, as well as those that followed it, was likely driven by a desire to serve the autonomy of patients; with this standard, doctors would likely be required to make even greater disclosures, thus empowering patients beyond what previous standards had required. While several courts today do follow this precedent, it remains a minority view. Most courts still follow the physician-centered standard of disclosure.
In many cases, the difference between these two standards will not matter; if a risk was not disclosed and subsequently became a reality for a patient, it is likely that the doctor will be liable. However, in the close cases, the question will become important, and experienced counsel will be required to see that justice is done.
If you believe that you or a loved one has been harmed by a doctor’s failure to disclose, you may have a claim. Please contact an experienced malpractice attorney at Levin & Perconti today.