Abstract
The increasing rejection of paternalistic approaches to medical care and the growing stress on patient autonomy are among factors creating many new legal obligations for physicians. Among these obligations are the requirements that cluster around the concept of “informed consent.” More and more, physicians are being required to allow their patients the opportunity to accept or reject pro-offered procedures and also, in many cases, being required to give their patients information about the procedures.
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Notes
Though these medical instances are usually treated as “civil” batteries rather than as “criminal” batteries. In some jurisdictions the legal concept of “battery” has been subsumed under the legal concept of “assault.”
Part of the intent in classifying a failure to get consent as a battery is to establish a basis for the awarding of damages. That is, there is a long precedent for making awards in battery cases. But that doesn’t capture the whole story either.
Schloendorff v. New York Hospital. 211 N.Y. 127,129:105 N.E. 92, 93 (1914).
NY Times 6/25/87 pB12.
At this point it is unclear what, if any, legal sanctions there would be against the physician who refused to offer such an explanation after his patient asked him for an explanation.
Yet there are difficulties implied by that exemption. For example, the physician should be aware that what he thinks is a commonly known procedure may not be commonly known and understood by the layperson. We find the same difficulty in explaining procedures to a patient—every trade and profession has its jargon, and medicine is no exception. The use of some terminology can become so second-nature to the physician that he may easily forget that the terminology is peculiar to his profession rather than commonly used in society.
Probably, a further implication is made that there would be little risk of harm to the patient from the procedure if he “happened” to consent without having known what he had consented to.
Although what follows from that refusal in regard to the physician’s or hospital’s obligation to continue treatment of the patient is a problem in and of itself. See below, “The Right to Refuse Treatment.”
American Hospital Association, A Patient’s Bill of Rights, (American Hospital Association, 1972).
It appears that some physicians can now refer their patients to a telephone service “Med-line” which will give the patients a tape recording of information about particular diseases or procedures.
See Chapter 5, “Psychiatric Ethics.”
A fuller discussion appears in Chapter 5, “Psychiatric Ethics.”
We are only examining surface claims here. The claim has also been made that the underlying intent of such legislation is really to construct a legal basis towards an eventual overturning of Roe vs. Wade.
Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977).
Two criteria to which, unfortunately, many do not adhere. Sometimes a resident will ask a student to do something beyond his capacity or beyond his right at that stage of his education, be it a procedure, or a direction to obtain an informed consent.
It is hoped and assumed that the preceptor will not insist that his students lie about their status to patients the next time.
American Medical Association, Current Opinions of the Judicial Council of the American Medical Association (Chicago: American Medical Association, 1982), pp. 28–29.
The issue of choices available to poor and well-off patients will be examined in Chapter 7.
Bibliography
American Medical Association. Current Opinions of the Judicial Council of the American Medical Association. Chicago: American Medical Association, 1982.
Culver, Charles M. and Bernard Gert. Basic Ethical Concepts in Neurologic Practice. Seminars in Neurology, 4 Mar. 1984: 1–8.
Gibbs, Richard F. Informed Consent—What It Is and How to Obtain It. Legal Aspects of Medical Practice, 15 Aug, 1987: 1–6.
Superintendent of Belchertown State School v. Saikewicz. 373 Mass. 728, 370 N.E.2d 417, 424 (1977).
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Kantor, J.E. (1989). Informed Consent and the Right to Refuse Treatment. In: Medical Ethics for Physicians-in-Training. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-1672-3_2
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DOI: https://doi.org/10.1007/978-1-4899-1672-3_2
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