Mass Tort Update- |
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Mass Tort Update
Lack of Informed Consent as Battery
American law initially considered issues of informed consent under the mantle of battery, which considers that any offensive and unconsented touching of another renders a person liable for damages. This law may still apply to patients under anesthesia and dates back to the early days of the Common Law.
Lack of consent is an issue of battery. When active misrepresentation is used to induce consent to surgery, perhaps by exaggeration of the surgeon's experience, the consent is invalid, and battery has taken place. Failure to disclose known adverse effects has been similarly defined. Persuading a court that a consent issue should be judged under the rules of battery may be of critical importance in some jurisdictions because punitive damages may be available for one cause of action and not the other. Statutes of limitations may differ as well. In states with limitations on noneconomic loss in medical malpractice cases, the ability to seek punitive damages through a battery cause of action may be the only mean to obtain legal assistance (because medical malpractice claims accrue smaller fees for the attorneys).
Currently, issues of consent are rarely prosecuted as battery. Instead, modern informed consent law states that, once a physician-patient relationship exists, a physician has a duty to provide to his or her patient the information needed for the person to make a rational decision whether to undergo surgery or any other treatment or to refuse treatment altogether.
Lack of Informed Consent as Negligence
Breach of duty through failure to provide patients with needed information is negligence and, therefore, is part and parcel of the standard medical malpractice claim. Although the law allows withholding information under special circumstances (ie, the therapeutic privilege), in which a patient's family and physician agree that a patient would be harmed by the information, rarely is there reason to invoke it. A physician will rarely want to risk being "second-guessed" after the fact.
If the underlying rationale is that patients should direct their own lives, then a patient who is not a minor or who has not been ruled incompetent by a court cannot justifiably remain uninformed.
Physician arguments that a given patient may refuse necessary treatment and thereby lose a chance of cure generally and rightfully have been disregarded and discarded by the courts. Such arguments presuppose paternalistic authority of the physician to make necessary cost-benefit analysis for the patient. Only the patient can understand his or her own priorities.
To obtain an informed consent that is acceptable to a court and meets ethical obligations, the following information must be provided:
While some physicians make an honest effort to warn patients about risks, they sometimes fail to disclose known adverse effects. That patients realize that surgery requires incisions and that incisions lead to scars is easy to assume. Every facial plastic surgeon has, nevertheless, explained to a skeptical patient that no surgery can be performed without leaving scars and that plastic surgery is the technique of minimizing visible scarring. Some patients just refuse to believe it.
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