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Pain: Ethics, Culture, and Informed Consent to Relief

Published online by Cambridge University Press:  01 January 2021

Linda Farber Post ,
Jeffrey Blustein ,
Elysa Gordon  and
Nancy Neveloff Dubler
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Extract

As medical technology becomes more sophisticate the ability to manipulate nature and manage disease forces the dilemma of when can becomes ought. Indeed, most bioethical discourse is framed in terms of balancing the values and interests and the benefits and burdens that inform principled decisions about how, when, and whether interventions should occur. Yet, despite advances in science and technology, one caregiver mandate remains as constant and compelling as it was for the earliest shaman—the relief of pain. Even when cure is impossible, the physician's duty of care includes palliation. Moreover, the centrality of this obligation is both unquestioned and universal, transcending time and cultural boundaries.

Although universally acknowledged, pain is a complex phenomenon for both the patient and the caregiver, influenced as much by personal values and cultural traditions as by physiological injury and disease.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 24 , Issue 4 , Winter 1996 , pp. 348 - 359
Copyright
Copyright © American Society of Law, Medicine and Ethics 1996

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References

It is beyond the scope of this paper to discuss the considerable research that has been devoted to the effects of culture, ethnicity, gender, and age on the perception, expression, and signification of pain, and the ways in which people make health care decisions. See, for example, Morris, D.B., The Culture of Pain (Berkeley: University of California Press, 1991); Helman, C., “Pain and Culture,” in Culture, Health and Illness: Introduction for Health Professionals (Oxford: Butterworth Heinemann, 1994); Spector, R., Cultural Diversity in Health and Illness (East Norwalk: Appleton-Century-Crofts, 3rd rev. ed., 1985); Pellegrino, E.D.et al, eds., Transcultural Dimensions in Medical Ethics (Frederick: University Publishing Group, 1992); Henderson, G. Primeaux, M., Transcultural Health Care (Philippines: Addison-Wesley Publishing, 1981); Villarruel, A.M. de Mantellano, B.O., “Culture and Pain: A Mesoamerican Perspective,” Advanced Nursing Science, 15 (1992): 21–32; Zatzick, D.F. Dimsdale, J.E., “Cultural Variations in Response to Painful Stimuli,” Psychosomatic Medicine, 52 (1990): 544–57; Pfefferbaum, B. Adams, J. Aceves, J., “The Influence on Pain in Anglo and Hispanic Children with Cancer,” Journal of the American Academy of Child and Adolescent Psychiatry, 29 (1990): 642–47; Bates, M.S., “Ethnicity and Pain: A Biocultural Model,” Social Science and Medicine, 24 (1987): 47–50; Greenwald, H.P., “Interethnic Differences in Pain Perception,” Pain, 44 (1991): 157–63; Lipton, J. Marbach, J.J., “Ethnicity and the Pain Experience,” Social Science of Medicine, 19 (1984): 1279–98; Thomas, V.J. Rose, F.D., “Ethnic Differences in the Experience of Pain,” Social Science and Medicine, 32 (1991): 1063–66; Honeyman, P.T. Jacobs, E.A., “Effects of Culture on Back Pain in Australian Aboriginals,” Spine, 21 (1996): 841–43; Stein, J.A. Fox, S.A. Murata, P.J., “The Influence of Ethnicity, Socioeconomic Status, and Psychological Barriers on Use of Mammography,” Journal of Health and Social Behavior, 32 (1991): 101–13; Jackson, J.J., “Urban Black Americans,” in Harwood, A., ed., Ethnicity and Medical Care (Cambridge: Harvard University Press, 1981): 37–129; de Rios, M.D. Achauer, B.M., “Pain Relief for the Hispanic Burn Patient Using Cultural Metaphors,” Plastic and Reconstructive Surgery, 88 (1991): 161–64; Kodiath, M.F. Kodiath, A., “A Comparative Study of Patients Who Experience Chronic Malignant Pain in India and the United States,” Cancer Nursing, 18, no. 3 (1995) 189–96; Koopman, C. Eisenthal, S. Stoeckle, J.D., “Ethnicity in the Reported Pain, Emotional Distress and Requests of Medical Outpatients,” Social Science and Medicine, 18 (1984): 487–90; Beyer, J.E. Wells, N., “Assessment of Cancer Pain in Children,” in Part, R.B., ed., Cancer Pain (Philadelphia: J.B. Lippincott, 1993): 57–84; Buckelew, S.P.et al, “Health Locus of Control, Gender Differences and Adjustment to Persistent Pain,” Pain, 42 (1990): 287–94; Bates, M.S. Edwards, W.T. Anderson, K.O., “Ethnocultural Influences on Variation in Chronic Pain Perception,” Pain, 52 (1993): 101–12; Bates, M.S. Rankin-Hill, L., “Control, Culture, and Chronic Pain,” Social Science and Medicine, 39 (1994): 629–45; Dane, J.R. Kessler, R.S., “A Matrix Model for the Psychological Assessment and Treatment of Acute Pain,” in Hamill, R.J. Rowlingson, J.C., eds., Handbook of Critical Care Pain Management (New York: McGraw-Hill, 1994): 53–81; Jecker, N.S. Carrese, J.A. Pearlman, R.A., “Caring for Patients in Cross-Cultural Settings,” Hastings Center Report, 25, no. 1 (1995): 6–14; Blackhall, L.J.et al, “Ethnicity and Attitudes Toward Patient Autonomy,” JAMA, 274 (1995): 820-25; Murphy, S.T.et al, “Ethnicity and Advance Care Directives,” Journal of Law, Medicine & Ethics, 24 (1996) 108–17; Carrese, J. Rhodes, L.A., “Western Bioethics on the Navajo Reservation,” JAMA, 274 (1995): 826-29; Daley, A.et al, “Effective Coping Strategies of African Americans,” Social Work, 40 (1995): 240–48; and Ewalt, P.L. Mokuau, N., “Self-Determination from a Pacific Perspective,” Social Work, 40 (1995): 168–74.Google Scholar
According to the official policy of the American Medical Association, “the social commitment of the physician is to prolong life and relieve suffering.” Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions (Chicago: American Medical Association, 1989). Likewise, the American Nurses Association's position is that “[n]ursing encompasses the … promotion of health; the prevention of illness; and the alleviation of suffering in the care of clients.” American Nurses Association, Code for Nurses (Kansas City: American Nurses Association, 1985).Google Scholar
Lisson, E.L., “Ethical Issues Related to Pain Control,” Nursing Clinics of North America, 22 (1987): 654.Google Scholar
Cassell, E., The Nature of Suffering and the Goals of Medicine (New York: Oxford University Press, 1991): At 35–37.Google Scholar
Id. at 35.Google Scholar
Id. at 36.Google Scholar
Id.Google Scholar
See supra note 1.Google Scholar
In addition to research on professional caregivers' responses to patients' pain, the influence of family caregivers' attitudes on the perception and treatment of pain has received attention. See, for example, Ferrell, B.R.et al, “Pain as a Metaphor for Illness, Part II: Family Caregivers' Management of Pain,” Oncology Nursing Forum, 18 (1991): 1315-21.Google Scholar
See Lopez, S.R., “Patient Variable Biases in Clinical Judgment: Conceptual Overview and Considerations,” Psychological Bulletin, 106 (1989): 184–203.CrossRefGoogle Scholar
Hadjistavropoulos, H.D. Ross, M. von Baeyer, C.L., “Are Physicians' Ratings of Pain Affected by Patients' Physical Attractiveness?,” Social Science and Medicine, 31 (1990): 69–72; and Hadjistavropoulos, T. Hadjistavropoulos, H.D. Craig, K.D., “Appearance-Based Information About Coping with Pain: Valid or Biased?,” Social Science and Medicine, 40 (1995): 537–43.CrossRefGoogle Scholar
Calderone, K.L., “The Influence of Gender on the Frequency of Pain and Sedative Medication Administered to Postoperative Patients,” Sex Roles, 23, no. 11/12 (1990): 713-25.CrossRefGoogle Scholar
See also a discussion of “learned inhibitors” to nurses' appropriate decision making regarding treatment of pain. Greipp, M.A., “Undermedication for Pain: An Ethical Model,” Advanced Nursing Science, 15 (1992): 44–53; and Ferrell, B.R., “When Culture Clashes with Pain Control,” Nursing, 25, no. 5 (1995): 90.CrossRefGoogle Scholar
Todd, K.H. Samaroo, N. Hoffman, J.R., “Ethnicity as a Risk Factor for Inadequate Emergency Department Analgesia,” JAMA, 269 (1993): 1537-39.CrossRefGoogle Scholar
In a study that has received considerable attention, poor physician assessment of pain was cited as one reason patients too often suffer at the end of life. SUPPORT Principal Investigators, “A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients,” JAMA, 274 (1995): 1591–98. See also Foley, K.M., “Misconceptions and Controversies Regarding the Use of Opioids in Cancer Pain,” Anti-Cancer Drugs, 6, Supp. 3 (1995): 4–13.CrossRefGoogle Scholar
Recognizing the impact of these factors, researchers have developed ethical approaches to cross-cultural encounters and decision making in the health care setting. See, for example, Jecker, Carrese, Pearlman, , supra note 1.Google Scholar
Angell, M., “The Quality of Mercy,” N. Engl. J. Med., 306 (1982): 98–99.CrossRefGoogle Scholar
Abbreviation for the Latin pro re na'ta, “according as circumstances require.” Dorland's Illustrated Medical Dictionary (Philadelphia: W.B. Saunders, 27th ed., 1985): At 1355.Google Scholar
See Angell, , supra note 17, at 98. See also Davis, Gail, suggesting that the patient should be an active participant in, rather than a recipient of, the pain management process. Davis, G.C., “The Meaning of Pain Management: A Concept Analysis,” Advanced Nursing Science, 15 (1992): 77–86.Google Scholar
See, for example, Mananey, F.X. Jr., “Proper Relief of Cancer Pain Is Worldwide Concern,” Journal of the National Cancer Institute, 87 (1995): 481-83; Foley, , supra note 15, at 13; Foley, K.M., “Pain and America's Culture of Death,” Wilson Quarterly, Autumn (1994): 20–21; McIntosh, H., “Regulatory Barriers Take Some Blame for Pain Undertreatment,” Journal of the National Cancer Institute, 83 (1991): 1202–04; Doyl, D., “Morphine: Myths, Morality and Economics,” Postgraduate Medicine Journal, 67, Supp. 2 (1991): S70–S73; Zenz, M., “Morphine Myths: Sedation, Tolerance, Addiction,” Postgraduate Medicine Journal, 67, Supp. 5 (1991): S100–S102; Porter, J. Jick, J., “Addiction Rare in Patients Treated with Narcotics,” N. Engl. J. Med., 302 (1980): 123; and Portenoy, R.K., “Opioid Therapy for Chronic Nonmalignant Pain: A Review of the Critical Issues” Journal of Pain and Symptom Management, 11 (1996): 203–17.Google Scholar
Mellman, Lasarus, Lake, Inc., Presentation of Findings: Mayday Fund (Sept. 1993) (reporting results of a national public opinion survey) (on file with authors). See also Rouse, F., “Decision Making about Medical Innovation: Role of the Advocate,” Albany Law Review, 57 (1994): 607-16.Google Scholar
See Rouse, , id.Google Scholar
Agency for Health Care Policy and Research, Clinical Practice Guidelines, Acute Pain Management: Operative or Medical Procedures and Trauma 2 (Rockville: Dept. of Health & Human Services, Pub. No. 92-0032, Feb. 1992).Google Scholar
Crowley, P.C., “No Pain, No Gain? The Agency for Health Care Policy and Research's Attempt to Change Inefficient Health Care Practice of Withholding Medication from Patients in Pain,” Journal of Contemporary Health Law and Policy, 10 (1993): 383–403.Google Scholar
Quill, T., “You Promised Me I Wouldn't Die Like This!,”’ Archives of Internal Medicine, 155 (1995): 1250-54.CrossRefGoogle Scholar
Wanzer, S.H.et al, “The Physician's Responsibility Toward Hopelessly Ill Patients, A Second Look,” N. Engl. J. Med., 320 (1989): 844-49.CrossRefGoogle Scholar
“The proper dose of pain medication is the dose that is sufficient to relieve pain and suffering, even to the point of unconsciousness.” Id. at 847.Google Scholar
See, for example, Foley, K.M., “Pain, Physician-Assisted Suicide and Euthanasia,” Pain Forum, 4 (1995): 163-78; Quill, T.E., “When All Else Fails,” Pain Forum, 4 (1995): 189–91; Berde, C.B.et al, “Proper Palliative Care Should Reduce Requests for Euthanasia and Physician-Assisted Suicide,” Pain Forum, 4 (1995): 195–96; Foley, supra note 20; Breitbart, W., “Suicide Risk and Pain in Cancer and AIDS Patients,” in Chapman, C.R. Foley, K.M., eds., Current and Emerging Issues in Cancer Pain: Research and Practice (New York: Raven Press, 1993): 49; Quill, T.E., “Death and Dignity: A Case of Individualized Decision Making,” N. Engl. J. Med., 324 (1991): 691–94; and Quill, , supra note 25.CrossRefGoogle Scholar
Quill, T.E. Cassel, C.K. Meier, D.E., “Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide,” N. Engl. J. Med., 327 (1992): 1380-83. William Breitbart asserts that “[p]ersistent pain and terminal illness are the most common reasons for euthanasia or physician-assisted suicide.” Breitbart, , supra note 28, at 49 (citations omitted).CrossRefGoogle Scholar
See generally Beauchamp, T.L. Childress, J.F., Principles of Biomedical Ethics (New York: Oxford University Press, 4th ed., 1994).Google Scholar
See, for example, Warren, H.S., “Unlimited Human Autonomy—A Cultural Bias?,” N. Engl. J. Med., 336 (1997): 954-56.Google Scholar
See Jecker, Carrese, Pearlman, , supra note 1.Google Scholar
Pellegrino, E.D., “Patient and Physician Autonomy: Conflicting Rights and Obligations in the Patient-Physician Relationship,” Journal of Contemporary Health Law and Policy, 10 (1993): 47–86. Dr. Edmund Pellegrino also argues that this biased view of autonomy prevents care providers from recognizing that some patients may not want to make health care decisions and that beneficence and respect include adapting to multicultural considerations and not imposing an unwanted burden of autonomous decision making. See Pellegrino, E.D., “Prologue: Intersections of Western Biomedical Ethics and World Culture,” in Pellegrino, E.D.et al, eds., Transcultural Dimensions in Medical Ethics (Frederick: University Publishing Group, 1985): At 13–19.Google Scholar
See Beauchamp, Childress, , supra note 30, at 128.Google Scholar
See, for example, a study by Dr. Joan Teno and Dr. Joanne Lynn recently asserted that, in spite of substantial publicity and educational efforts, very few people at the end of life have advance directives and, when they do exist, these prospective instructions have little effect on medical care. Kolata, G., “Documents Like Living Wills Are Rarely of Aid, Study Says,” New York Times, Apr. 8, 1997, at A12.Google Scholar
See, for example, Mohr v. Williams, 95 Minn. 261 (1905) (holding that “the free citizen's first and greatest right, which underlies all others—the right to himself—” precludes even the most skillful medical or surgical intervention without patient consent); Pratt v. Davis, 224 Ill. 300 (1906) (holding that, unless there is an emergency or a circumstance where disclosure would be harmful to the patient, a capable individual must be consulted and must give consent before surgery can be performed); Natanson v. Kline, 86 Kan. 393 (1960) (upholding the necessity for physicians to employ discretion in disclosure of information to patients); Salgo v. Leland Stanford University Board of Trustees, 154 Cal. App. 2d 560 (1970) (introducing the term “informed consent,” and holding that the physician is under an affirmative duty to disclose the risks, benefits, and alternatives to the proposed treatment intervention); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972) (holding that the physician is obliged to provide sufficient information about a procedure's risks so that a reasonable patient can make an informed decision); Moore v. Regents of the University of California, 51 Cal. 3d 120 (1990) (holding that informed consent requires physician disclosure of “personal interests unrelated to the patient's health” but potentially affecting medical judgment); and Arato v. Avedon, 5 Cal. 4th 1172 (1993) (holding that the duty to obtain informed consent does not require a physician to disclose a patient's statistical life expectancy).Google Scholar
Presently, each of the fifty states and the District of Columbia have legally recognized patient rights by adopting an informed consent doctrine. In addition, the U.S. Congress has expressly legislated patients' rights to individualized medical decision making. The Patient Self-Determination Act (PSDA) (42 U.S.C.A. § 1395cc(f) (1992)) advocates patients expressing their wishes about future treatment in the event they become incapacitated. PSDA requires all health care facilities funded by Medicare or Medicaid to inform patients on admission of their right to execute advance directives under the laws of the respective states. Although most people use these written instruments prospectively to refuse care, advance directives are value neutral and can be used to request care as well.Google Scholar
See, for example, 95 Minn. 261; and 224 Ill. 300. See also Kiev, A., “A History of Informed Consent Doctrine,” Applied Clinical Trials, 2 (1993): At 61; Katz, J., “Informed Consent: Ethical and Legal Issues,” in Arras, J.D. Steinbock, B., eds., Ethical Issues in Modern Medicine (Mountain View: Mayfield Publishing, 1995): At 88–91; President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions: A Report on the Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship, at 18–20 (1982) (here inafter Making Health Care Decisions). The question in a battery action is whether the physician informed the patient of the nature of the procedure and whether the patient consented to the intervention. Proponents of the battery theory argue that its purpose is to protect bodily integrity, thus linking informed consent to the principle of personal autonomy. See Faden, R. Beauchamp, T., A History and Theory of Informed Consent (New York: Oxford University Press, 1986): At 26–27. Critics counter that the theory is useful only when a physician intentionally withholds information or acts beyond the scope of the patient's consent. Id. at 29–30. Battery law is also criticized as limiting physicians to a single defense, that of having obtained explicit consent or, in an emergency situation, presumed consent. See Pellegrino, , supra note 33, at 78. Others maintain that battery theory disadvantages the patient because many courts are reluctant to view physicians as acting in bad faith or in an antisocial manner. See, for example, Faden, Beauchamp, , Id. at 29–30, 127–28. Currently, Pennsylvania is the only state that characterizes the lack of informed consent as battery. See Gray v. Grunnagle, 223 A.2d 663 (1966), on reh'g, 228 A.2d 735 (1967) (finding that, based on a battery analysis, consent to treatment must be knowledgeable and informed). All jurisdictions, how ever, permit a battery approach when consent is absent or is determined to be absent for a particular procedure. Rosovsky, F.A., Consent to Treatment: A Practical Guide (Boston: Little Brown, 2nd ed., 1990): At § 1.3.Google Scholar
In contrast to the battery analysis, the negligence theory of liability examines the defendant's unintended harmful act or failure to act. The elements required to establish negligence include the presence of a legal duty, the breach of that duty, measurable injury, a direct causal link between the breach and the injury, and a proximate causal relation between the act and the injury. Thus, to win the case, the patient must prove physical injury. See Rosovsky, , id. at §1.3. Advocates of negligence theory applaud its allowing physicians to invoke many defenses and acknowledging that most physicians act in good faith. Opponents argue that negligence theory reduces the informed consent doctrine to a “failure to warn law,” based more on professional liability and the expectations of the medical profession than on patient decision making and self-determination. See Katz, J., “Informed Consent: A Fairy Tale? Law's Vision,” University of Pittsburgh Law Review, 39 (1977): At 139. Other commentators argue that the negligence theory's emphasis on proving physical harm ignores the rights-based aspects of informed consent. See Dworkin, R., “Medical Law and Ethics in the Post-Autonomy Age,” Indiana Law Journal, 68 (1993): At 729 (“The loss of dignity, autonomy, free choice, and bodily integrity that is so exalted in the rhetoric of informed consent is worth nothing at judgment time.”).Google Scholar
See, for example, Canterbury, 464 F.2d 772 (D.C. Cir), cert. denied, 409 U.S. 1064; and Wilkinson v. Vesey, 295 A.2d 6769 (R.I. 1972). See also Kiev, , supra note 38, at 62.Google Scholar
Making Health Care Decisions, supra note 38, at 20.Google Scholar
See Beauchamp, Childress, , supra note 30, at 147–48, 142. For an analysis of informed consent as upholding patient choice and a proposal for reframing the doctrine as a constitutional right to patient choice in medical decision making, see Shultz, M.M., “From Informed Consent to Patient Choice: A New Protected Interest,” Yale Law Journal, 95 (1985): 219-99.Google Scholar
This judicial reluctance may reflect fears that the patient, in retrospect, will decide that the information not disclosed was material to the decision and that, with full disclosure, she/he would have declined treatment. See Canterbury v. Spence, 464 F.2d 772, 790–91 (D.C. Cir. 1972) (“It places the physician in jeopardy of the patient's hindsight and bitterness, thus an objective test is preferable….”).Google Scholar
Arato v. Avedon, 858 P.2d 598, 606 (Cal. 1993) (finding that “the contexts and clinical settings in which physician and patient interact and exchange information material to therapeutic decisions are so multifarious, the informational needs and degree of dependency of individual patients so various, and the professional relationship itself such an intimate and irreducibly judgment-laden one that we believe it is unwise as a matter of law that a particular species of information be disclosed.”).Google Scholar
Note the civil rights and feminist movements in general, with examples from education (the de jure and de facto integration of religious and ethnic minorities into educational institutions; the admission of women into formerly all-male schools); art (serious artistic criticism of the highly suggestive, and to some offensive, art; greater acceptance of homosexuality as an artistic subject and homosexuals as actors in drama); sports (the acceptance and success of athletes from ethnic minorities and alternative sexual orientation); professions (women and (religious and ethnic) minorities increasing their presence in medicine, law, and academic faculties). Note the parallel consumer movement awakening the buying public to its right to full disclosure as a prerequisite to informed purchasing.Google Scholar
Mental capacity or competence has been defined as “[s]uch a measure of intelligence, understanding, memory, and judgment relative to the particular transaction (e.g., making of will or entering into contract) as will enable the person to understand the nature, terms, and effect of his or her act.” Black's Law Dictionary (St. Paul: West, 6th ed., 1990): At 986. Although the terms capacity and competence are often used interchangeably, for bioethics purposes there are important distinctions that go beyond semantics. Competence is technically a legal designation made only by a court, whereas health care decisions are a matter of medical determination. Because the legal system is rarely involved in decision making in the clinical setting, it has become customary to refer to the patient's capacity to make health care decisions, and to refer to the decisionally capacitated or capable individual. See Lo, B., “Assessing Decision-Making Capacity,” Law, Medicine & Health Care, 18 (1990): 196–97; see also Wanzer, et al, supra note 26, at 845.Google Scholar
See Beauchamp, Childress, , supra note 30, at 138–39.Google Scholar
According to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, capacity to make health care decisions requires “(1) possession of a set of values and goals; (2) the ability to communicate and to understand information; and (3) the ability to reason and to deliberate about one's choices.” Making Health Care Decisions, supra note 38, at 57 (footnote omitted).Google Scholar
For example, a study found that traditional Navajo culture includes the belief that reality, rather than being reflected in language, is shaped by language. Because great importance is placed on avoiding negative thoughts or speech, policies requiring discussion of end-of-life issues in compliance with PSDA become ethically problematic in the Navajo community. See Carrese, Rhodes, , supra note 1. Likewise, attitudinal variations have been found toward disclosure of diagnosis and prognosis of terminal illness and end-of-life decision making among elderly subjects from different ethnic backgrounds. Although European Americans and African Americans preferred the patient autonomy model, Korean Americans and Mexican Americans preferred that family members deal with medical information and decision making. See Blackhall, et al, supra note 1; and Murphy, et al, supra note 1.Google Scholar
Arras, John D., interview with Kaplan, Ronald M.D., Department of Anesthesiology, Montefiore Medical Center, Bronx, N.Y. (1992).Google Scholar
See Beauchamp, Childress, , supra note 30, at 147–48, 142. For an analysis of informed consent as upholding patient choice and a proposal for reframing the doctrine as a constitutional right to patient choice in medical decision making, see Shultz, , supra note 42.Google Scholar
See Furrow, B.R.et al, Health Law (St. Paul: West, 2nd ed., 1991): At 435.Google Scholar
See Kiev, , supra note 38, at 104; and Beauchamp, Childress, , supra note 30, at 150.Google Scholar
Patterson, E., “The Therapeutic Justification for Withholding Medical Information: What You Don't Know Can't Hurt You, or Can It?,” Nebraska Law Review, 64 (1985): 721-71.Google Scholar
The U.S. Supreme Court defines waiver as the voluntary and intentional relinquishment of a known right. See Miranda v. Arizona, 384 U.S. 436, 475–76 (1966); and Johnson v. Zerbst, 304 U.S. 458, 464 (1938).Google Scholar
See, for example, Alaska Stat. § 09.-55.556(b)(2) (Supp. 1989); Ark. Code Ann. § 16-114-206(b)(2)(c) (Michie 1987); Del. Code Ann. tit. 18, § 6852(b)(2) (Supp. 1994); N.H. Rev. Stat. Ann. § 507-C:2(II)(b)(3) (1983); Utah Code Ann. § 78-14-5(2)(c) (Supp. 1995); and Vt. Stat. Ann. tit. 12, §1909(c)(2) (Supp. 1990).Google Scholar
See, for example, Arato, 858 P.2d 598 Cal. (holding that a patient may validly waive the right to be informed); Holt v. Nelson, 523 P.2d 211, 219 (1974) (holding that “a physician need not disclose the hazards of treatment when the patient has requested she not be told about the danger”); and Cobbs v. Grant, 502 P.2d, 112 (1972) (holding that “a medical doctor need not make disclosures of risks when the patient requests that he not be so informed”).Google Scholar
Lawrence Gostin proposes that the conflict between the patient autonomy-based informed consent doctrine and the family-centered model of caring may require legal reform to promote cultural diversity in health care decision making. He suggests a standard of disclosure based on patient values, including the right to decide whether to receive medical information. Gostin, L.O., “Informed Consent, Cultural Sensitivity and Respect for Persons,” JAMA, 274 (1995): 844-45.CrossRefGoogle Scholar
See Meisel, A., “The ‘Exceptions’ to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking,” Wisconsin Law Review, (1979): 413-88. See also Carrese, Rhodes, , supra note 1 (discussing the importance of respecting an individual's culturally based need not to know and adopting a more communal style of decision making).Google Scholar
Some commentators frame patient waivers in terms of patient self-determination. See Meisel, A., “Entrapment, Informed Consent, and the Plea Bargain,” Yale Law Journal, 84 (1975): At 694. It has been suggested, however, that legal precedent and the litigious nature of contemporary medical practice require framing the issue as one of “informed” waiver, obligating physicians to alert patients to their right to waive, as well as to the consequences of forgoing knowledge of the medical risks and benefits. For a more complete discussion of informed waiver, see Gordon, E., “Multiculturalism in Medical Decision Making: The Notion of Informed Waiver,” Fordham Urban Law Journal, 23 (1996): 1321–62.Google Scholar
For a description of the several types of nonexpressed consent, see Beauchamp, Childress, , supra note 30, at 128.Google Scholar
See Schoene-Seifert, B. Childress, J.F., “How Much Should the Cancer Patient Know and Decide?,” CA-A Cancer Journal for Clinicians, 36, no. 2 (1986): At 90.CrossRefGoogle Scholar
See supra notes 20–29 and accompanying text.Google Scholar
It is important to distinguish between anesthesia (“loss of the ability to feel pain, caused by administration of a drug or by other medical interventions”), which requires informed consent, and analgesia (“absence of sensibility to pain … designating particularly the relief of pain without loss of consciousness”), which does not require informed consent. See Borland's Illustrated Medical Dictionary, supra note 18, at 79, 70.Google Scholar
It is interesting to note that patients using patient-controlled analgesia not only have a greater sense of control over their pain and its relief, they often use less analgesic medication. Telephone Interview, Dr. Carole W. Agin, Director, Pain Management Service, Dept. of Anesthesiology, Montefiore Medical Center, Bronx, N.Y. (1997).Google Scholar
See Dresser, R. Robertson, J., “Quality of Life and Non-Treatment Decisions for Incompetent Patients,” Law, Medicine & Health Care, 17 (1989): 234-44.CrossRefGoogle Scholar
Abramson, N.S.et al, “Consent: Informed, Implied, and Deferred,” JAMA, 256 (1986): At 1892 (footnote omitted) (emphasis in original).CrossRefGoogle Scholar
“The principle of respect for persons incorporates at least two ethical tenets: First, that individuals should be treated as autonomous agents; and second, that persons with diminished autonomy (including minors) are entitled to protection…. [B]eneficence[]is the obligation to secure the well-being of persons by acting positively on their behalf and maximizing the benefits obtained.” Leikin, S., “The Role of Adolescents in Decisions Concerning Their Cancer Therapy,” Cancer Supplement, 71 (1993): At 3342.3.0.CO;2-I>CrossRefGoogle Scholar
See Levendusky, P. Pankratz, L., “Self-Control Techniques as an Alterative to Pain Medication,” Journal of Abnormal Psychology, 84 (1975): 165-68; see also Schulte, P.A. Ringen, K., “Notification of Workers at High Risk: An Emerging Public Health Problem,” American Journal of Public Health, 74 (1984): 485–91.CrossRefGoogle Scholar
See supra note 67 and accompanying text; and Dresser, R. Whitehouse, P.J., “The Incompetent Patient on the Slippery Slope,” Hastings Center Report, 24, no. 4 (1994): 6–12.CrossRefGoogle Scholar
See, for example, “Some patients are ‘barely conscious,’ ‘stuporous … with negligible awareness of self, other, and the world.’ Their capacity for sentience gives such patients an interest in avoiding pain and other unpleasant physical sensations, which justifies the administration of pain-relieving medication and other palliative measures.” See Dresser, Whitehouse, , id. at 10 (quoting Rango, N., “The Nursing Home Resident with Dementia,” Annals of Internal Medicine, 1026 (1985): 835-41).Google Scholar