Duhaime's Law Dictionary


Informed Consent Definition:

The consent of a capable patient to treatment after disclosure of the risks.

Related Terms: Medical Malpractice

In Acuna v Turkish, Justice Albin of the Supreme Court of New Jersey provided this summary of law:

"The underlying basis for the doctrine of informed consent is a patient's right of self-determination, the right to intelligently decide whether to choose or decline a particular medical procedure.

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.

"The informed consent doctrine has evolved from a concept originally sounding in battery to a firmly established principle of negligence involving the duty of care a doctor owes his patient.

"It is now settled that a physician has a legal duty to disclose to the patient all medical information that a reasonably prudent patient would find material before deciding whether to undergo a medical procedure. The standard focuses on what a reasonable patient needs to know — that is, what a reasonable patient would likely find significant given the risks — to make an informed decision in foregoing or assenting to a medical procedure. The standard obligates the physician to disclose only that information material to a reasonable patient's informed decision. Generally, the physician is required to inform the patient of the available medical options, the risks associated with those options, and the nature of the intended procedure."

Informed consent imageIn an article published in the California Law Review, Michael Myers wrote:

"A physician is under an obligation (1) to make a full disclosure of all known material risks in a proposed operation or course of treatment except for those risks of which the patient is likely to know or (2) to prove the reasonableness of any lesser disclosure or the immateriality of the undisclosed risk."

In Salgo v Leland Stanford, Justice Bray of the Court of Appeals of California repeated these words:

"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 in order to induce his patient's consent. At the same time, the physician must place the welfare of his patient above all else and this very fact places him in a position in which he sometimes must choose between two alternative courses of action. One is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote; this may well result in alarming a patient who is already unduly apprehensive and who may as a result refuse to undertake surgery in which there is in fact minimal risk; it may also result in actually increasing the risks by reason of the physiological results of the apprehension itself. The other is to recognize that each patient presents a separate problem, that the patient's mental and emotional condition is important and in certain cases may be crucial, and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent."

Author and law professor H. Hull wrote:

"Informed consent is a legal construct grounded in principles of individual autonomy and emanates from the fundamental concept that every human being of adult years and sound mind has a right to determine what shall be done with his own body. Built upon the elements of information, decisional capacity, and voluntarism, the doctrine of informed consent recognizes that patients have a right to be fully informed of the alternatives to and risks of a proposed procedure prior to being subjected thereto....

"The failure to obtain such consent before acting may constitute a breach of duty and subject the medical provider to liability. Valid informed consent also requires the absence of coercion and the presence of a competent patient."
 

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