The Legal Development of the Informed Consent Doctrine: Past and Present

Abstract

For millennia physicians were admonished to obscure the details of patients’ illnesses and poor prognoses. The Hippocratic ethic precludes physicians from including patients in medical decisionmaking. That ethic demanded of doctors that they “[p]erform [their duties] calmly and adroitly, concealing most things from the patient … revealing nothing of the patient's future or present condition.”

Informed Consent and the Use of Transvaginal Synthetic Mesh

“…For example, the Hippocratic Oath demanded physicians perform their duties "calmly and adroitly, concealing most things from the patient … revealing nothing of the patient's future or present condition." 22 This view of things has given way grudgingly to state legislation designed to increase patient involvement in medical decision-making. 23 After World War II, the Nuremberg Code highlighted the concept of consent in human research, although it must be recognized that there are important differences between treatment and research consent.…”

“…30 As already mentioned, though, informed consent litigation begins with Mary Schloendorff in 1914. 22 Schloendorff underwent a hysterectomy, having consented only to an "ether examination." Judge Benjamin Cardozo writes in this case, "a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."…”

“…13 Today, assault and battery in the context of health care delivery generally applies only when no consent has been obtained in a nonemergent clinical setting. 22 Current informed consent litigation focuses on negligence, which is the failure to perform what is seen under like circumstances to be the duty of a reasonable person.…”

“…22 The Salgo court concluded, "a physician violates his duty to his patients and subjects himself to liability if he withholds any facts … necessary to form the basis of an intelligent consent by the patient to the proposed treatment." 31 This decision initially appeared to establish a patient-based standard for disclosure but ultimately referenced physician discretion.…”

“…The suit maintained that these risks were not disclosed, and, indeed, Dr. Spence confessed that, when asked about the surgical risks, he replied, "not any more than any other operation." 22 Defending this position, Dr. Spence maintained that communicating the risks of surgery might dissuade a patient from pursuing needed therapy. Notably, this argument is a common justification for limiting the scope of informed consent, yet it undoubtedly threatens self-determinism.…”