![]() In contrast to the Canadian position that consent requires only broad discussion, 16 at least some US courts have held that consent is a nullity unless it is obtained completely consistent with the informed consent process, that is, there is either informed consent or no consent at all. Some attorneys feel that juries are more comfortable with lack of informed consent as a basis for an award, because it avoids a malpractice branding of the defendant physician while addressing a sentiment that the patient should be compensated. ![]() 10 Success on the latter issue will enhance a favorable verdict for the plaintiff and is a convenient fallback position when the malpractice case is weak. Malpractice addresses the patient’s interest in competent care, whereas lack of informed consent implicates self-determination. 14Īlthough the legal analyses for malpractice and informed consent are similar, 15 these are distinctly separate causes of action. Expert testimony usually is required to establish what the patient should have been told, but jurisdictions are divided on whether expert opinion is required as to what the patient would have decided if properly informed. That the physician acted entirely in good faith is not a defense. The elements of the claim are (1) the physician did not present the risks and benefits of the proposed treatment and of alternative treatments (2) with full information, the patient would have declined the treatment and (3) the treatment, even though appropriate and carried out skillfully, was a substantial factor causing the patient’s injuries. It differs importantly from malpractice in not requiring that the treatment be a departure from the standard of care. 9 – 11Ī claim of lack of informed consent usually accompanies an allegation of medical malpractice for wrongful diagnosis or treatment. 8 Some authors have advocated deeming lack of informed consent as an invasion of these rights, actionable as battery. The right of choice under the concepts of autonomy and personal dignity is now legally recognized to require more. Whereas this effectively precludes a claim of battery under present-day conventions, it otherwise is insufficient to eliminate all legal risk. ![]() The patient’s consent distinguishes permitted from unpermitted treatment. A point of practical significance is that as an intentional tort, battery is not within the scope of the physician’s malpractice liability coverage, and because it is considered a wrong against society at large requiring a strong deterrent, there is the possibility of punitive damages. Had life or hearing been immediately threatened, the result might have been otherwise. In this case, consent to treatment of the right ear did not imply consent for the other ear despite the similarity in indications. The patient took an easier route than proving negligence by obtaining a verdict of battery, despite the surgeon’s best intentions. There were complications and resulting damage from the surgery. With the patient under general anesthesia, the surgeon operated on the left ear, which at the subsequent trial he said required the same procedure. The patient gave informed consent to the procedure. The following actual case 7 is illustrative:Ī physician determined that a patient required surgery on the right ear. That an unpermitted medical treatment may be lifesaving or curative, except in situations where consent would be implied (discussed below), does not excuse battery. 2 Treatment with no consent at all, actual or implied, 3 treatment substantially different from that to which the patient consented, 4, 5 or unauthorized substitution of one treater for another 6 come within the definition of battery, especially when involving invasive procedures. In the medical context, it is legally well established that everyone of sufficient age and soundness of mind has the right to decide what is to be done to his or her body, even when survival is implicated. The offensive conduct became acceptable if its recipient consented and thereby waived revenge. 1 Battery provoked revenge, which threatened the public peace. Society’s original interest in consent was as a peace-keeping device. The contact need not result in bodily harm the intended contact itself is the harm. It consists of unpermitted, unprivileged, intentional contact with another’s person. Informed consent begins with consideration of the tort of battery, one of the oldest forms of legally disfavored conduct.
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