Abstract
This chapter raises the concern that the law is convention-reinforcing in that it gives overwhelming weight and priority to conventional treatment options in formulating legal rules and chills efforts to adopt and disclose emerging treatment options. It raises the issue of whether it is appropriate to apply the “two schools of thought” theory or the Bolam test, which is popular in the context of diagnosis and treatment, in the context of disclosure of treatment options. It is argued that the range of treatment options that fall within the duty to inform may be wider than the range of treatments that satisfy the threshold for the “two schools of thought” doctrine or the Bolam test. A doctor’s duty to inform should not be confined only to conventional, standard and well-established treatment options. In the context of adopting emerging treatment options, the law gives doctors some leeway in trying innovative or new therapies. Doctors have latitude in deciding whether to adopt emerging treatment options. For those who opt against adopting an emerging treatment option, information about that may still fall within the scope of the duty to disclose.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
1Nattrass v. Weber, 2008 ABQB 259, at [392] (warning “against over-extending the duty to inform of alternative treatments to the point of including fringe alternatives”).
- 2.
2Seney v. Crooks (1998), 166 D.L.R. (4th) 337, at [60] (involving an alternative treatment that was not unreasonable, was more reliable to achieve some effects, and was well-known and preferred by some doctors within his community; the court holding that a patient should be advised of a known treatment which others in the same speciality consider superior, even if the doctor does not agree); see also, Pozdzik (next friend of) v. Wilson, 2002 ABQB 351, [2003] 311 A.R. 258, at [65]–[66].
- 3.
3It has been repeatedly observed that “[a] charge of negligence in a choice of treatment is refuted, as a matter of law, by showing that a respectable minority of expert physicians approved the method selected.” See, Church v. Bloch, 182 P.2d 241, 245 (Cal.App. 2 Dist. 1947); Sim v. Weeks, 7 Cal.App.2d 28, 37; 45 P.2d 350, 354.
- 4.
4Jones v. Chidester, 610 A.2d 964 (Pa., 1992).
- 5.
5Jones v. Chidester, 610 A.2d 964, 969 (Pa., 1992) (Justice McDermott concurring, noting that “[w]hen each group has its advocates, and each has its arguable reasons, a doctor of either, cannot be faulted if he properly administers the one to his knowledge and experience seems the better, so long as that group is comprised of a sufficient number of reputable and respected members.” (emphasis added)).
- 6.
6Jones v. Chidester, 610 A.2d 964, 969 (Pa., 1992) (emphasis added). Although favouring to keep a quantitative limitation, the Court did not place a numerical certainty on what constitutes a ‘considerable number’. Under the doctrine, three experts are sufficient to create another school of thought, but one expert, no matter how accomplished, is not a “school”. See, Choma v. Iyer, 871 A.2d 238, 246 (Pa.Super., 2005) (Lally-Green J. (concurring)).
- 7.
7Jones v. Chidester, 610 A.2d 964, 969 (Pa., 1992).
- 8.
8Barton v. Owen, 71 Cal.App.3d 484, 502 (Cal.App.2.Dist. 1977).
- 9.
9Bolitho v. City and Hackney HA [1997] 4 All ER 771, 778. Only in “a rare case”, where “it can be demonstrated that the professional opinion is not capable of withstanding a logical analysis”, that “the judge is entitled to hold that the body of opinion is not reasonable or responsible”. Thus, the court’s focus is, first, to see whether the defendant’s conduct was consistent with a body of competent professional opinion then prevailing, and, if there was such a body of opinion, then the subsidiary question arises of whether the practices thereby sanctioned can be held to be incapable of withstanding logical analysis and, correspondingly, to be unreasonable or irresponsible. See, Bolitho v. City and Hackney HA [1997] 4 All ER 771, 779; Mirza v. Birmingham Health Authority [2001] EWHC QB 1, at [48].
- 10.
10Commonwealth of Australia (2002), recommendation 3, page 42. In this formulation, “widely held” is designed to prevent reliance being placed on localised, isolated practices; “respected practitioners” is designed to ensure that the opinion deserves to be treated as soundly based.
- 11.
11Civil Liability Act 2003 (Qld), s 22(1) (2) (3) (4). It needs to be noted that the “significant number” qualification is absent from the clause on the standard of care for professionals in many other jurisdictions’ civil liability legislation. See, Civil Liability Act 2002 (Tas), s 22; Civil Liability Act 2002 (WA), s 5 PB; Civil Liability Act 1936 (SA), s 41; Civil Liability Act 2002 (NSW), s 5O.
- 12.
12Dobler v. Halverson (2007) 70 NSWLR 151, 167, at [59], [60] (talking about 5O of the Civil Liability Act 2002 (NSW) (Standard of care for professionals), which reads: (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.).
- 13.
13Dunne (an infant) v. National Maternity Hospital [1989] IR 91, 109, per Finlay C.J. (emphasis added).
- 14.
14Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977).
- 15.
15The National Advisory Committee on Health and Disability (New Zealand) New Health Interventions: A Report to the New Zealand Minister of Health (2005) <http://www.nhc.health.govt.nz/moh.nsf/indexcm/nhc-new-health-interventions?Open> (last accessed 25 May 2010), page 22. See also, Smith v. Shalala, 954 F. Supp. 1 (D.D.C., 1996). In this case, the patient challenged FDA’s decision to exclude him from its experimental treatment program (Antineoplastons, an experimental anti-cancer agent). The FDA’s decision to exclude the patient from experimental Antineoplastons treatment was based on the great concern that he had not received and tried potentially curative chemotherapy, an available, proven treatment for his illness. The court expressed great concern about the efficacy of Antineoplastons treatment because the efficacy of Antineoplastons in the treatment of Hodgkin’s disease has not been scientifically established. The court found that, even if the patient had a fundamental right to “choose among available medical treatments,” Antineoplastons treatment was not regarded as “available” treatment as a matter of law because it had not been approved for general use by FDA.
- 16.
16Ahern v. Veterans Administration, 537 F.2d 1098, 1102 (C.A.N.M. 1976) (the defendants administering excessive amounts of radiation (2,999 rads over a 5-day period) which was deemed as experimental because it was not within the bounds of recognized medical standards within the medical community; the Court of Appeals observing that “[w]e recognize that there are many considerations that may influence a doctor’s decision on the amount of radiation to be administered in any given case. However, our legal system requires that the treatment to be administered must be within the bounds of recognized medical standards in order to overcome legal challenges such as that presented in this case. Accordingly, in order for a physician to avoid liability by engaging in drastic or experimental treatment, which exceeds the bounds of established medical standards, his patient must always be fully informed of the experimental nature of the treatment and of the foreseeable consequences of that treatment.” (emphasis added)); See also, Estrada v. Jaques, 321 S.E.2d 240, 255 (N.C.App. 1984) (holding that “reasonable standards of informed consent to an experimental procedure require disclosure to the patient that the procedure is experimental”); Heinrich v. Sweet, 308 F.3d 48, 69 (C.A.1 (Mass.), 2002) (observing that “a doctor who proposes an experimental course of treatment must not only tell the patient about the treatment and its consequences, but must also inform the patient that he is conducting an experimental treatment and that the patient is part of a study”).
- 17.
Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993) (Georgia’s informed consent law required disclosure only of alternatives that are “generally recognized and accepted by reasonably prudent physicians”).
- 18.
The doctor and the patient may, by reaching a special agreement, opt for non-conventional therapy. See, Schneider v. Revici, 817 F.2d 987 (2nd Cir. 1987) (The plaintiff-patient, suffered from breast cancer, refused a biopsy and possibly a partial mastectomy recommended by conventional circle of physicians, and decided to seek the “non-toxic”, non-invasive, nonconventional treatment methods (selenium and dietary restrictions) that have not been adopted by the medical community. The defendant did not alienate the patient from pursuing conventional therapies. The defendants actually recommended the plaintiff to have the tumor surgically removed on several occasions. The plaintiff brought a diversity action against the defendant, alleging, among other claims, medical malpractice. The defendant raised express assumption of risk as an affirmative defense. The Court of Appeals concluded that a jury instruction on express assumption of risk is proper in medical malpractice cases where a patient knowingly forwent conventional medical treatment and instead accepted the risks that caused the injuries.); Boyle v. Revici, 961 F.2d 1060 (2nd Cir. 1992) (It involved the same non-conventional physicians as in Schneider v. Revici, 817 F.2d 987 (2nd Cir. 1987). A cancer patient did not heed the advice of conventional cancer specialists (undergoing surgery to resect her tumor), instead, chose first to explore a non-invasive alternative consisting of urine monitoring, urinalyses and the ingestion of various mineral compounds; the court held, a charge on express assumption of risk was appropriate.); Charell v. Gonzales, 660 N.Y.S.2d 665 (Sup. 1997) (A patient, being diagnosed with uterine cancer, forwent the recommended chemotherapy and radiation after undergoing hysterectomy, instead decided to undergo alternative treatment which included special diet and six coffee enemas a day. The alternative treatment practitioner never inform his patient that his protocol was experimental and not generally accepted in the medical community. The alternative treatment practitioner dissuaded the patient from having conventional chemotherapy and radiation, advising his patient not to “mess” with chemotherapy. Even though a practitioner persuaded a patient to opt for a non-conventional therapy and there was no express assumption of risk which would have exonerated defendant, the court found the presence of implied assumption of risk which would trigger the comparative fault analysis.). In the English context, see, Shakoor (Deceased) v. Situ [2000] 4 All ER 181, 188 (“it seems to me that the fact that the patient has chosen to reject the orthodox and prefer the alternative practitioner is something important which must be taken into account. Why should he later be able to complain that the alternative practitioner has not provided him with skill and care in accordance with the standards of those orthodox practitioners whom he has rejected?”).
- 19.
Schneider v. Revici, 817 F.2d 987, 995 (2nd Cir. 1987) (adding that “[w]hile a patient should be encouraged to exercise care for his own safety, … an informed decision to avoid surgery and conventional chemotherapy is within the patient’s right ‘to determine what shall be done with his own body’ ”). See also, Boyle v. Revici, 961 F.2d 1060, 1063 (2nd Cir. 1992) (“[A] patient may expressly assume the risk of malpractice and dissolve the physician’s duty to treat a patient according to the medical community’s accepted standards.”). Compare, Smith v. Shalala, 954 F. Supp. 1 (D.D.C., 1996) (court upholding the FDA’s decision to exclude a patient from an experimental treatment program (Antineoplastons) because the patient has not tried conventional therapies).
- 20.
20Estrada v. Jaques, 321 S.E.2d 240, 254 (N.C.App. 1984).
- 21.
21Estrada v. Jaques, 321 S.E.2d 240, 254 (N.C.App. 1984).
- 22.
22Estrada v. Jaques, 321 S.E.2d 240, 254 (N.C.App. 1984).
- 23.
23The context of innovative and experimental treatments involves more complicated things. Experimentation is always done with a mixture of motives. Though doctors want the best for their patient, they will also have an eye to the scientific value of their work. The development of new interventions is driven both by commercial imperatives and the individual clinician’s desire to improve patient outcomes. A combination of eager researchers and desperate relatives may obscure the fact that the patient’s condition is best addressed with conservative, rather than aggressive, therapy.
- 24.
24Wilsher v. Essex Area Health Authority [1987] QB 730, 749 (“[I]f the decision to embark on the treatment at all was justifiable and was taken with the informed consent of the patient, the court should … be particularly careful not to impute negligence simply because something has gone wrong.” (emphasis added)); Zimmer v. Ringrose (1981) 124 D.L.R. (3d) 215, 223–224 (noting that the mere adoption of an innovative treatment was not negligence per se); Cryderman v. Ringrose [1977] 3 W.W.R. 109; affirmed [1978] 3 W.W.R. 481 (Alta. S. C. Appellate Division) (holding that the defendant-doctor was not negligent just because he had not followed the usual and normal practice).
- 25.
25For example, Sidaway v. Bethlem Royal Hospital Governors (1985) AC 871, 893 (“Those members of the public who seek medical or surgical aid would be badly served by the adoption of any legal principles that would confine the doctor to some long-established, well-tried method of treatment only, although its past record of success might be small, if he wanted to be confident that he would not run the risk of being held liable in negligence simply because he tried some more modern treatment, and by some unavoidable mischance it failed to heal but did some harm to the patient. This would encourage ‘defensive medicine’ with a vengeance.”).
- 26.
26Michael A. Jones (2003), 218. In the USA context, see, the Texas case of Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977). It involved an assertion that “the mode or form of treatment was not a remedy for the diagnosed condition”. The Supreme Court of Texas compared four standards that may be applied to such a medical malpractice suit: (1) the “respectable minority” or “considerable number” standard; (2) the “any variance” standard; (3) the “reasonable surgeons would disagree” standard; (4) the “reasonable and prudent doctor” standard. The court expressed its preference for the “reasonable and prudent doctor” standard (“Did the physician undertake a mode or form of treatment which a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances?”). This standard should be applied whether the mode or form of treatment is “experimental,” “outmoded,” or “rejected.” See also, Douglas Rader Brown 1993, 233–234 (“The ‘reasonable and prudent doctor’ standard is preferable because it allows for the use of ‘experimental’ methods of treatment. By quantifying medical acceptance, the ‘considerable number’ and ‘respectable minority’ standards unfairly bias the jury against medical situations that demand experimentation.”); Leech v. Bralliar, 275 F. Supp. 897, 902–903 (D.C.Ariz. 1967) (“Prolotherapy as practiced by the defendant in his treatment of the plaintiff was not proper medical practice anywhere as no physician would have practiced prolotherapy as the defendant did in treating the plaintiff.” (emphasis added)).
- 27.
27Simms v. An NHS Trust [2003] 1 All ER 669; [2002] 2 WLR 1465; [2002] EWHC 2734 (Fam).
- 28.
28The case involved two young patients, the variant Creutzfeldt-Jakob disease (vCJD) and a treatment that was new and untested on human beings at that time. The variant CJD, widely known as the human form of “mad cow disease”, was recognised as a new and rare disease. The disease is characterized by a multiplication of abnormal proteins in the brain, leading at the clinical stage to progressively impaired neurological functioning. Symptoms include an inability to walk or stand, loss of memory, and failure of speech. There were gaps in the knowledge of the mechanism of the disease and in the precise relationship between the abnormal proteins, the loss of nerve cells and neurological dysfunction. The proposed Pentosan Polysulphate treatment (PPS) was not licensed in the United Kingdom. It had no firm scientific basis and no evidence of efficacy and safety. It was not possible at that stage to have any scientific proof of the efficacy of the proposed treatment. The patients’ prognosis was dire. There was no cure and there were no recognised effective drugs which have been able to prolong life or arrest the continuing neurological deterioration. See, Simms v. An NHS Trust [2002] EWHC 2734 (Fam), paras. [3], [9], [31], [59].
- 29.
Simms v. An NHS Trust [2002] EWHC 2734 (Fam), para. [48] (“The ‘Bolam test’ ought not to be allowed to inhibit medical progress. And it is clear that if one waited for the ‘Bolam test’ to be complied with to its fullest extent, no innovative work such as the use of penicillin or performing heart transplant surgery would ever be attempted.”) (citing Lord Diplock in Sidaway v. Bethlem Royal Hospital Governors [1985] AC 871 at page 893).
- 30.
30Simms v. An NHS Trust [2002] EWHC 2734 (Fam), para. [51].
- 31.
31Simms v. An NHS Trust [2002] EWHC 2734 (Fam), para. [48] (emphasis added). The evidence the court relied on were from three English medical witnesses and a distinguished Japanese neuropathologist whose PPS-related paper was in the process of being peer-reviewed by a prestigious medical journal. The evidence revealed that “it would not in itself be irresponsible or unethical” to give the treatment to the patients, although the requirement for surgery raises issues as to the assessment of the risks of that surgery.
- 32.
32In the eyes of the court, the proposed PPS treatment complies with the Bolam test. It was not futile. The pioneering treatment could offer possible benefits to the patients. There was, from the medical evidence, a possibility of arresting the disease temporarily, and the possibility of prolonging the life of these two patients to some extent, although whether that be in weeks, months or years is impossible to tell. Although the chance of improvement is slight, it was not non-existent. See, Simms v. An NHS Trust [2002] EWHC 2734 (Fam), paras. [58] and [61].
- 33.
33Simms v. An NHS Trust [2002] EWHC 2734 (Fam), para. [64] (“the views of both families should carry considerable weight in the circumstances of these two young people”).
- 34.
34Simms v. An NHS Trust [2002] EWHC 2734 (Fam), para. [61] (“There is no alternative treatment available.”).
- 35.
35There was agreement about the inevitable outcome in the absence of any new treatment. The patients were bound to die. There was no cure and there were no recognised effective drugs which had been able to prolong life or arrest the continuing neurological deterioration. The two young people had “very little to lose” in the treatment going ahead. It was a reasonable risk to take on their behalf. See, Simms v. An NHS Trust [2002] EWHC 2734 (Fam), paras. [9], [62].
- 36.
36See, Zimmer v. Ringrose (1981) 124 D.L.R. (3d) 215, 223 (but the claimant failed to establish causation because the claimant would have undergone the procedure in any event).
- 37.
37Del Valle Rivera v. United States, 630 F. Supp. 750 (D.P.R. 1986) (the court found no duty to offer sclerotherapy, a treatment that was not “an available developed therapy” and was utilized on “an experimental basis” in some medical centers).
- 38.
38Canterbury v. Spence, 464 F.2d 772, 781 (D.C.Cir. 1972).
- 39.
39Sicard v. Sendziak, 2008 ABQB 690, at [111] (Court of Queen’s Bench of Alberta).
- 40.
40Bucknam v. Kostuik (1986), 55 OR (2d) 187, upholding (1983), 44 O.R.(2nd) 102 (Ont. S.C.); Turkington v. Lai, 52 C.C.L.T. (3d) 254, 281, at 101 (Ont. S. C. J.).
- 41.
41Burke v. Humphrey [2001] TASSC 133 (Cox CJ, 21 November, unreported, BC200107222), at [21] (involving methods of tubal ligation). Under the causation analysis, the court also noted that it was “highly unlikely that [the plaintiff] would have put off to a future occasion some other procedure, especially invasive surgery, when a potentially reversible but equally, if not more effective, method of tubal ligation was offered to her during a laparoscopy she was due to undergo the next day in any event” (emphasis added) (at [28]).
- 42.
42Sicard v. Sendziak, 2008 ABQB 690, at [111], [149] (Court of Queen’s Bench of Alberta). In the United States case of Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d 285 (Okl. 1984), the patient underwent a surgical procedure (hysterectomy), not being aware of non-surgical alternative (hormonal therapy). The physician’s testimony and records established that the non-surgical hormonal therapy as viable and possibly preferable to the surgery. The Supreme Court of Oklahoma held that the patient established a prima facie case under the theory of a physician’s failure to disclose alternative treatment, giving rise to liability under “informed consent”. It held that the surgery was “unnecessary” or “not an ‘absolute’ necessity”. See, Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d 285, 287–288 (Okl. 1984).
- 43.
43Stockford v. Johnston Estate, 57 C.C.L.T. (3d) 135, 148–149 (N.B.Q.B.).
- 44.
44Logan v. Greenwich Hosp. Ass’n, 191 Conn. 282; 465 A. 2d 294 (Conn. 1983). In order to determine the extent of lupus involvement in kidneys, there was a need for the patient, who had systemic lupus erythematosus (lupus), to undergo a kidney biopsy. The defendant proposed and performed a closed needle kidney biopsy, which involved a local anesthetic and insertion of a surgical needle into her back in order to obtain a specimen of kidney tissue, without discussing the alternative of an open biopsy, which would require an incision and a general anesthesia, because he did not consider the latter procedure advisable. The Logan case centred on the propriety of the court instruction which directed that the duty of a physician to advise a patient of possible alternatives in obtaining an informed consent to a contemplated operative procedure does not require the disclosure of a more hazardous alternative. The Supreme Court of Connecticut rejected the instruction. See also, Gemme v. Goldberg, 626 A.2d 318, 327 (Conn. App. 1993) (“We cannot say as a matter of law that a doctor is any more justified in withholding information from a patient on the ground that the result would have been less perfect than our Supreme Court could conclude as a matter of law that a more hazardous procedure need not be disclosed.” (emphasis added)); Parkins v. U.S., 834 F. Supp. 569 (D. Conn. 1993) (The undisclosed option did not carry with it the risk of paralysis since the aorta would be clamped in the abdominal region, but it was more dangerous.).
- 45.
45Logan v. Greenwich Hosp. Ass’n, 465 A.2d 294, 301 (Conn. 1983).
- 46.
46Matthies v. Mastromonaco, 733 A. 2d 456, 464 (N. J. 1999) (involving alternatives that the physician does not recommend, the plaintiff alleging that the doctor did not inform her of the riskier, but potentially more successful, alternative of surgery).
- 47.
47For example, the Canadian case of Seney v. Crooks (1998), 166 D.L.R. (4th) 337 is concerned with well- known alternative. In that case, the alternative treatment not discussed by the doctor was not unreasonable, it was a more reliable method of achieving some effects, and was well-known and preferred by some doctors within his community. The court did not hesitate to hold that a patient should be advised of a known treatment which others in the same speciality consider superior, even if the doctor does not agree.
- 48.
48Wachter v. United States, 689 F. Supp. 1420, 1423–1424 (D. Md. 1988) (If one procedure “was not in general use, was not then known among surgeons to produce better results, and was not the subject of any definitive study showing it would be better than [the proposed treatment]”, it will not be viewed as a “medically significant alternative”.).
- 49.
See, Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993). In this case, the split among professional opinions surrounded a choice between invasive neurosurgical procedure (carotid endarterectomy) and a non-surgical procedure (ethylene diamine tetra acetic acide chelation (EDTA) therapy) for treatment of a blockage of carotid artery. The minority view, asserted by two experts testimony produced by the plaintiff-patient, supported treating EDTA therapy as an alternative to surgery. The plaintiff-patient even alleged that EDTA therapy was a more promising alternative because “[it] is as effective as carotid endarterectomy in treating coronary blockages, but it does not entail those risks that accompany invasive surgery”. However, the minority view was overwhelmed by majority view. The overwhelming evidence produced by the defendants suggested that EDTA was not recognized in the “mainstream medical community” as an alternative to a carotid endarterectomy in treating coronary blockages because it was not only ineffective but also dangerous.
- 50.
50Spann v. Irwin Memorial Blood Centers, 34 Cal.App.4th 644, 655 (Cal.App.1.Dist. 1995) (citing Osborn v. Irwin Memorial Blood Bank, 5 Cal.App.4th at p. 276).
- 51.
51Archer v. Galbraith, 567 P.2d 1155, 1161 (Wash.App. 1977) (“The doctor testifying about possible alternatives set forth a means of therapy pursued by a respectable segment of the medical profession. The patient was entitled to be told about that alternative. The testimony was not a recitation on a course of treatment followed only by the medical witness himself.” (emphasis added)). In this Washington case, the defendant doctor recommended and performed a surgery because, in his opinion, surgery was absolutely necessary and was the only acceptable and successful treatment for the patient’s condition. The defendant’s opinion was shared by some other physicians who testified that surgery was the preferred method of treatment for the patient. However, one physician’s testimony revealed that, although surgery may be recommended, the patient actually had three choices: (1) a choice of removing a nodule (surgery); (2) a choice of keeping a nodule under observation for a period of time to see whether it would increase in size or regress under medication; (3) a choice of leaving it alone. See also, Wenger v. Oregon Urology Clinic, 796 P. 2d 376 (Or. App. 1990).
- 52.
52For example, Logan v. Greenwich Hosp. Ass’n, 191 Conn. 282; 465 A. 2d 294 (Conn. 1983) (The reason why the defendant did not consider open biopsy to be a viable alternative for the plaintiff was that there is a greater risk of complications, especially those involving general anaesthesia. The defendant personally did not recommend and mention an open biopsy procedure, although he had performed such operation previously and conceded that “it was a more controlled procedure in terms of visualizing the kidney”).
- 53.
53Gideon Parchomovsky and Alex Stein 2008, 301 (emphasis in the original).
- 54.
54Gideon Parchomovsky and Alex Stein 2008, 286 (highlighting the distortionary effect of the torts system on innovation; proposing two possible reforms: (1) “policymakers can make tort law more welcoming to innovation by eliminating the privileged status of custom and moving to a pure cost-benefit system” (“equalizing down.”), (2) “[i]nstead of abolishing the custom rules, it is possible to keep them and grant certain innovations, approved by special boards of industry experts, the same privileged status as enjoyed by custom” (“equalizing up”)).
References
Brown, Douglas Rader. 1993. Panacea or Pandora’s Box: The “two schools of medical thought” doctrine after Jones v. Chidester, 610 A.2D 964 (PA. 1992). Washington University, Journal of Urban and Contemporary Law 44: 223.
Commonwealth of Australia. 2002. Review of the law of negligence: Final report. http://revofneg.treasury.gov.au/content/review2.asp. Accessed 22 July 2008.
Dailey, Joan P. 1994. The two schools of thought and informed consent doctrines in Pennsylvania: A model for integration. Dickinson Law Review 98: 713–737.
Ford, Paul J. 2009. Vulnerable brains: Research ethics and neurosurgical patients. Journal of Law, Medicine & Ethics 37: 73–82.
Jones, Michael A. 2003. Medical negligence. London: Sweet & Maxwell.
Kowalski, Michael. 1998. Applying the “two schools of thought” doctrine to the repressed memory controversy. Journal of Legal Medicine 19: 503–547.
Mason, J.K., and G.T. Laurie. 2. Law and medical ethics, 7th ed. New York: Oxford University Press.
Menikoff, Jerry. 2009. The vulnerability of the very sick. Journal of Law, Medicine & Ethics 37: 51–58.
Parchomovsky, Gideon, and Alex Stein. 2008. Torts and innovation. Michigan Law Review 107: 285–315.
Prillaman, Hunter L. 1990. A physician’s duty to inform of newly developed therapy. Journal of Contemporary Health Law and Policy 6: 43–58.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2012 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Zhao, X. (2012). Emerging Treatment Options. 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_6
Download citation
DOI: https://doi.org/10.1007/978-3-642-31647-0_6
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-31646-3
Online ISBN: 978-3-642-31647-0
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)