There is a well-recognized body of law about the duty of informed consent given by a physician when offering treatment options to a patient. Informed consent cases usually arise when a patient claims the doctor gave insufficient information about the risks associated with a procedure before the patient consents to have a procedure performed. Such cases are analyzed under a negligence theory of law. Under this theory, there is a community standard of practice by a reasonably prudent physician that includes the duty of informed consent, if not met, could contribute to making a case for negligence.
In contrast to any claim made for negligence, a claim for battery could be made if the performance of a procedure was done without consent, resulting in offensive touching. However, it is argued that such a claim “should be confined to those relatively few cases in which the physician has engaged in intentional deviations from practice…[1].” Informed consent entails full disclosure of the nature, benefits, and risks of a recommended procedure before gaining permission to perform the procedure or any alternative procedure. This standard has evolved into a legal duty if not met imposes civil liability for medical malpractice.
Salgo v. Leland Stanford Jr. University Board of Trustees is a precedent-setting case that highlights the duty of informed consent. As noted in this case:
“A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment. Likewise, the physician may not minimize the known dangers of a procedure or operation to induce his patient’s consent. [A physician] is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote…[2].”
In Natanson v. Kline, a patient brought a claim against a provider for failing to warn her of the risks inherent in her treatment and for negligence in the provider’s performance. At issue in Natanson v. Kline is whether the breach of a duty of informed consent in light of a well-skilled procedure could result in but-for causation for negligence. The court notes that the duty of informed consent is met…[s]o long as the disclosure is sufficient to assure an informed consent…[and] he proceeded as competent medical men would have done in a similar situation [3]. Although the jury determined the provider performed the treatment in compliance with established medical standards, the court concluded: … the [provider] failed in his legal duty to make a reasonable disclosure to the [patient] who was his patient as a matter of law [4]. This notion of a legal duty was raised again in Berkey v. Anderson in which the court notes: “[A] physician’s duty to disclose is not governed by the standard practice of the physician’s community, but is a duty imposed by law which governs his conduct in the same manner as others in a similar fiduciary relationship [5].”
In determining the duty of informed consent in Cobbs v Grant the court determined that the extent of a provider’s duty must be established by expert testimony as reasoned in Carmicheal v. Reith. As such evidentiary support of an expert witness is necessary to secure a verdict of negligence based upon a lack of informed consent. The duty of informed consent was defined even further in Truman v. Thomas when the court determined whether a physician breached their duty of care for failing to inform a patient of the risks of not consenting to a recommended procedure. In this case, the plaintiff, descendants of the decedent, filed a wrongful death action against the provider for his failure to perform a pap smear. At issue, in this case, was whether the trial court erred in rejecting the following jury instruction: ‘as a matter of law…a physician who fails to perform a Pap smear test on a female patient over the age of 23 and to whom the patient has entrusted her general physical care is liable for injury or death proximately caused by the failure to perform the test [6]. The appellate court determined the trial court did not err in rejecting the jury instruction stating: “[t]he suggestion that a physician must perform a test on a patient, who is capable of deciding whether to undergo the proposed procedure is directly contrary to the principle that it is the patient who much ultimately decide which medical procedures to undergo [7]”.
In Wertz v. Huffaker, the court reasoned that no consent does not equate to a provider’s failed duty of informed consent. The plaintiff filed a medical malpractice claim against her physician for failure to obtain her consent for treatment. The court cites Wilkerson v. Mid-America Cardiology when reasoning, “a claim of negligence in obtaining informed consent presupposed consent to the procedure [8].” Such a claim is “premised on the patient’s actual consent to therapy without sufficient disclosure of the risks or alternatives to the treatments [9]. The court determined that the facts, in this case, show the plaintiff did not consent to have this procedure before it was performed; as such there can be no claim for negligence based on a lack of informed consent if consent was never given.
The case law formulating the duty of informed consent has evolved from a reasonable prudent standard of care to a legal duty with well-defined caveats. The case law has established the evidentiary requirements needed to support a negligence claim for lack of informed consent and has also made an important distinction between the applicable laws to be applied when analyzing the duty of informed consent based upon a negligence cause of action as opposed to a claim for battery.
[1] Plante, An Analysis of ‘Informed Consent’ 36 Ford .L .Rev. 639, 671-672 (1968).
[2] Salgo v. Leland Stanford Jr. University Board of Trustees (1957), 154 Cal. App. 2d 560, 317 P.2d 170.
[3] Natanson v. Kline (1960), 187 Kan. 393, 350 P.2d 1093.
[4] Id.
[5] Berkey v. Anderson (1969) 1 Cal. App.3d 790.
[6] Truman v. Thomas (1980) 611 P.2d 902
[7] Id.
[8] Wuerz v. Huffaker, 42 S.W.3d 652 (2001).
[9] Id.
