Rethinking informed consent: Tell your patients of all the treatment choices available to them

Duty to disclose material information is not limited by the fact that the proposed treatment or therapy is, or is not, surgical or physically invasive in nature.
By B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD
ORTHOPEDICS TODAY 2009; 29:24
       
The editors gratefully acknowledge the contribution of Jeffrey A. Shane, MD, JD, in the preparation of this article.

The doctrine of informed consent continues to stir debate among physicians, ethicists, and courts. The origins of informed consent derive from the common law tort of battery, which is defined as the intentional harmful or offensive contact to another. Valid consent of the plaintiff negates an allegation of battery. Thus, absent a signed informed consent, a patient could sue a surgeon for battery even if the operation were properly indicated and expertly performed. Over the last century, this traditional understanding of informed consent and how it applies in the medical field has continued to evolve. . . . . . .

In this column we examine two recent legal decisions related to informed consent. The first was issued in Wisconsin and addresses the duty of a physician to inform patients of available options and alternatives to a proposed treatment. The second, from Maryland, illustrates how the concept of informed consent attaches to the continuing communication between a patient and physician during treatment. Both touch the boundaries of the doctrine of informed consent in the context of a health care provider’s
treatment of a patient. . . . . . .

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As these cases illustrate, the doctrine of informed consent goes well beyond the well-recognized duty to disclose to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. In both of these cases, jurors found that the defendant doctor was found not negligent of medical malpractice. Even so, the respective courts permitted the plaintiffs to move forward with their claims on the theory of insufficient informed consent.

These cases do not suggest that all possible risks have to be divulged while obtaining informed consent. As the Maryland court explained, the scope of the duty to inform is measured by the materiality of the information to the decision of the patient. That said, a physician’s duty to disclose material information is not limited by the fact that the proposed treatment or therapy is, or is not surgical, or physically invasive in nature.

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