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Race, Religion, and Informed Consent — Lessons from Social Science

Published online by Cambridge University Press:  01 January 2021

Dayna Bowen Matthew
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Extract

Patients belonging to ethnic, racial, and religious minorities have been all but excluded from the legal academy’s ongoing conversation about informed consent. Perhaps this is just as well, since the conversation appears to have concluded that the doctrine has failed to serve as a meaningful regulation of clinical relationships. Informed consent does not operate in practice the way it was intended in theory. More than a decade ago, Peter Schuck noted the “informed consent gap” that distinguishes the “proper” law of informed consent “on the books” from the actual consent law in action, and called for a more contextualized approach to informed consent. Susan Wolf later called for a systemic approach to informed consent in order to accommodate multiple decision points in the managed care setting. Some reformers have sought enhancements to expand the doctrine.

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Independent
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Journal of Law, Medicine & Ethics , Volume 36 , Issue 1 , Spring 2008 , pp. 150 - 173
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Copyright © American Society of Law, Medicine and Ethics 2008

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References

Schneider, C. E., “After Autonomy,” Wake Forest Law Review 41 (2006): 411–444.Google Scholar
See Pittman, L. J., “A Thirteenth Amendment Challenge to Both Racial Disparities in Medical Treatments and Improper Physicians’ Informed Consent,” St. Louis University Law Journal 48 (2003): 131–189 (proposing informed consent include physician duty to disclose to African Americans historic disparity between the types of treatments recommended for blacks versus whites).Google Scholar
See, e.g., Schneider, , supra note 1, at 417. (Reviewing empirical evidence that within the informed consent setting, physicians do not convey information effectively, patients do not understand information conveyed, and patients are unable to accurately analyze the information they receive to conclude, “There is already evidence that a perilously large part of the bioethical agenda has fallen intolerably and irremediably short of the expectations that inspired and would justify it….Consider first informed consent, perhaps the oldest and most basic legal implementation of bioethical principles.”) See also Katz, J., The Silent World of Doctors and Patients (Baltimore: Johns Hopkins University Press, 2002): At 3 (commenting that the development of informed consent law ended as soon as it began).Google Scholar
Schuck, P. H., “Rethinking Informed Consent,” Yale Law Journal 103 (1994): 899–959.CrossRefGoogle Scholar
Wolf, S. M., “Toward a Systemic Theory of Informed Consent in Managed Care,” Houston Law Review 35 (1999): 1631–1681.Google Scholar
See, e.g., Miller, F. H., “Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship,” Indiana Law Review 31 (1998): 1019–1042 (urging to enlarge the required scope of physicians’ disclosure to include internet information); see also Krause, J. H., “Reconceptualizing Informed Consent in an Era of Health Care Cost Containment,” Iowa Law Review 85 (1999): 261–386 (proposed statutory changes to compel physicians to disclose non-covered alternatives to patients).Google Scholar
Hall, M. A., “A Theory of Economic Informed Consent,” Georgia Law Review 31 (1997): 511–536 (global disclosures by managed care organizations would inform patients of cost containment measures and reduce physician obligation to disclose expensive alternatives at treatment).Google Scholar
E.g., Bobinski, M. A., “Autonomy and Privacy: Protecting Patients from Their Physicians,” University of Pittsburg Law Review 55 (1994): 291–387.Google Scholar
E.g., Smith, G. P. II, “The Vagaries of Informed Consent,” Indiana Health Law Review 1, no. 1 (2004): 109–129.CrossRefGoogle Scholar
See, e.g. King, J. S. Moulton, B. W., “Rethinking Informed Consent: The Case for Shared Medical Decision making,” American Journal of Law & Medicine, 32, no. 4 (2006): 429–502; see also, Katz, , supra note 3, at 102; Wennberg, J. Peters, P., “Unwarranted Variations in the Quality of Health Care: Can the Law Help Medicine Provide a Remedy?” Wake Forest Law Review 37 (2002): 925–931.CrossRefGoogle Scholar
Meisel, A., “From Tragedy to Catastrophe: Lawyers and the Bureaucratization of Informed Consent,” Yale Journal of Health, Policy, Law & Ethics 6 (2006): 479–483, at 480.Google Scholar
See Braddock, C. H. et al., “Informed Decision Making in Outpatient Practice: Time to Get Back to Basics,” JAMA 282, no. 24 (1999): 2313–2320, at 2313.CrossRefGoogle Scholar
See, e.g., Fischer, G. S. et al., “Patient Knowledge and Physician Predictions of Treatment Preferences after Discussion of Advance Directives,” Journal of General Internal Medicine 13, no. 7 (1998): 447–454, at 447; see also Herz, D. A. et al., “Informed Consent: Is It A Myth?” Neurosurgery 30, no. 2 (1992): 453–458, at 453.CrossRefGoogle Scholar
See, e.g., Strull, W. et al., “Do Patients Want to Participate in Medical Decision Making?” JAMA 253, no. 21 (1984): 2990–2994, at 2990; see generally, Schneider, C. E., The Practice of Autonomy: Patients, Doctors and Medical Decisions (Oxford: Oxford University Press, 1998).CrossRefGoogle Scholar
See, e.g. Schneider, C. E., “After Autonomy,” Wake Forest Law Review 41 (2006): 411–444.Google Scholar
Id., at 413.Google Scholar
Scholendorff v. Society of New York Hospitals, 105 N.E. 92, 93 (N.Y. 1914)Google Scholar
See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) cert. denied, 490 U.S. 1064 (1972) (enacted by a slight majority of states).Google Scholar
See Nathanson v. Kline, 350 P.2d 1093 (Kan. 1960).Google Scholar
Hippocrates, , Of the Epidemics, Book I, Section II, Paragraph 5 (400 B.C.), a treatise on the cause, effect and treatment of epidemic diseases. This phrase is often misquoted “First do no harm” and incorrectly attributed to Hippocrates’ Hippocratic Oath. The Oath mentions neither any obligation to refrain from harm, nor any duty for a physician to obtain permission or consent before doing a procedure.Google Scholar
See Beauchamp, T. L. Childress, J. F., eds., Principles of Biomedical Ethics, 5th ed. (Oxford: Oxford University Press, 2001): At 173. (“The implicit assumption of beneficence that exists in medical and health care professions and their institutional contexts: Promoting the welfare of patients – not merely avoiding harm – expresses medicine's goal, rationale, and justification.”)Google Scholar
Philosopher William Frankena adds the obligations to 1) prevent evil; 2) remove evil; and 3) do good as elements of malfeasance. See Frankena, W., Ethics (New Jersey: Prentice Hall, 1973): at 47.Google Scholar
Plato, , The Laws (Kalispell, Montana: Kessinger Publishing, 1997).Google Scholar
McCullough, L. B., “John Gregory's Medical Ethics and the Reform of Medical Practice in Eighteenth Century Edinburgh,” Journal of the Royal College of Physicians Edinburgh 36, no. 1 (2006): 86–92.Google Scholar
McCullough, L. B., ed., John Gregory's Writings on Medical Ethics and Philosphy of Medicine (Dordrecht: Kluwer Academic Publishers, 1998): at 38.Google Scholar
McCullough, L. B., “John Gregory's Medical Ethics and the Reform of Medical Practice in Eighteenth Century Edinburgh,” Journal of the Royal College of Physicians Edinburgh 36, no. 1 (2006): at 92.Google Scholar
A full text PDF version of The Code of Medical Ethics of the American Medical Association, adopted in May 1847, is available at <http://www.ama-assn.org/ama/upload/mm/369/1847code.pdf> (last visited January 8, 2008).+(last+visited+January+8,+2008).>Google Scholar
Flint, A., Medical Ethics and Etiquette (New York: D. Appleton and Company: 1893): at 21.Google Scholar
Jih Chin, J., “Doctor-Patient Relationship: From Medical Paternalism to Enhanced Autonomy,” Singapore Medical Journal 43, no. 3 (2002): 152–155, at 152.Google Scholar
Feinberg, J., “Legal Paternalism,” Canadian Journal of Philosophy 1, no 1 (1971): 105–124, at 113 (cited in Beauchamp and Childress, supra note 21).CrossRefGoogle Scholar
Beauchamp and Childress define “paternalism” as “the intentional overriding of one person's known preferences or actions by another person, where the person who overrides justifies the action by the goal of benefiting or avoiding harm to the person whose preferences or actions are overridden.” See Beauchamp, Childress, , supra note 21, at 178. Accepting this definition, admonishing a patient to sacrifice their own opinions in order to accept those of their physician, may be seen as a non-paternalistic suggestion that restricts no autonomous choice whatsoever.Google Scholar
Herbert, V., “Informed Consent – A Legal Evaluation,” Cancer 46, no. 4 (1980): 1042–1044, at 1043.3.0.CO;2-E>CrossRefGoogle Scholar
Salgo v. Leland Stanford Jr. University Board of Trustees, 54 Cal. App.2d at 576, 317 P.2d at 180 (emphasis added).Google Scholar
See Beauchamp and Childress for discussion of Allan McCoid's attempt to survey all consent cases to distinguish negligence and battery claims. Beauchamp and Childress, supra note 21, at 127.Google Scholar
The 1980 Code provides, “A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law.” American Medical Association, Principles of Medical Ethics, June 1980, available at <http://www.ama-assn.org/ama1/pub/upload/mm/369/1980_principles.pdf> (last visited January 8, 2008).+(last+visited+January+8,+2008).>Google Scholar
American Medical Assciation, Medical Code of Ethics, Preamble, 2006, available at <http://www.ama-assn.org/ama/pub/category/2512.html> (last visted January 22, 2008); see also Hafferty, F. W., “Toward the Operationalization of Professionalism: A Commentary,” The American Journal of Bioethics 4, no. 2 (2004): 28–31 at 29.Google Scholar
Appelbaum, P. S. Lidz, C. W. Meisel, A., Informed Consent Legal Theory and Clinical Practice (Oxford: Oxford University Press, 1987): at 22.Google Scholar
Schuck, P. H., “Rethinking Informed Consent,” Yale Law Journal 103 (1994): 899–959, at 924.CrossRefGoogle Scholar
See Garrison, M. Schneider, C. E., The Law of Bioethics: Individual Autonomy and Social Regulation (Eagan: Thompson West, 2005): at 143.Google Scholar
Faden, R. Beauchamp, T., A History and Theory of Informed Consent (Oxford: Oxford University Press, 1986): At 85 (explaining that the 1903 and 1912 revisions of the AMA Code of Ethics was “almost wholly consumed” with controlling quackery and competition. Having met with limited success, the profession turned to legal regulation.”)Google Scholar
See Holmer, A., “Direct-To-Consumer Marketing of Prescription Drugs: Creating Consumer Demand,” JAMA 281, no. 4 (1999): 382–384.Google Scholar
See Katz, , supra note 3.Google Scholar
Id.Google Scholar
Roe v Wade, 410 U.S. 113 (1973).Google Scholar
See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).Google Scholar
(In this case involving a patient in persistent vegetative state following injury from automobile accident, Supreme Court denied parents’ petition to withdraw artificial feeding tube and hydration absent clear and convincing evidence of incompetent patient's intent regarding medical treatment.)Google Scholar
Scholendorff v. Society of New York Hospitals, 105 N.E. 92, 93 (N.Y. 1914).Google Scholar
Robert J. Levine, for example, has observed that the autonomy centered approach to consent reflects an American and thus minority viewpoint. See Levine, R. J., “Informed Consent: Some Challenges to the Universal Validity of the Western Model,” Law, Medicine, and Healthcare 19 (1991): 207–213, at 207; see also Duffy, T. P., “Agamemnon's Fate and the Medical Profession,” Western New England Law Review 9 (1987): 21–31.CrossRefGoogle Scholar
Katz, J., “Informed Consent – Must It Remain a Fairy Tale?” Journal of Contemporary Health Law & Policy 10 (1993): 69–89 (Katz advances the ideal of informed consent that actively involves shared discussion and decision making between physician and patient).Google Scholar
Others have noted that the narrow focus of the doctrine eliminates consideration of values such as family integrity and physician competence. See, Blackhall, L. J. Murphy, S. Frank, G. Michel, V. Azen, S., “Ethnicity and Attitudes Toward Patient Autonomy,” JAMA 274, no. 10 (1995): 820–825.CrossRefGoogle Scholar
See e.g., Canterbury v. Spence, 464 F.2d 784 (D.C. Circ. 1972) (where it is insisted that informed consent is required to secure “the patient's right of self determination” or the Patient Self-Determination Act passed of 1990 codified as Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101–508, §§4206, 4751).Google Scholar
See Blackhall, et al., supra note 50, at 823.Google Scholar
Logistic regression analysis is an analytical approach used by economists to determine the relationship between several independent variables when the dependent variable or outcome is dichotomous or can limited to two, mutually exclusive choices.Google Scholar
Id.Google Scholar
Id., at 823.Google Scholar
Id., at 824.Google Scholar
Id., at 285.Google Scholar
See Blackhall, et al., supra note 50, at 825.Google Scholar
Interestingly, Blackhall found that although European and African Americans more often believed that patients should know the truth about a terminal diagnosis, they had different reasons for their beliefs. European American participants in the study explained that disclosure was important to allow dying patients’ time to get their affairs in order. African American participants often expressed the view that disclosure was important to allow dying patients in time to communicate with God, either to seek forgiveness or to pray for healing and recovery. See, Blackhall, L. J. et al., “Bioethics in a Different Tongue: The Case of Truth-Telling” Journal of Urban Health 78, no. 1 (2001): 59–71. (This is part two of the study reported in “Ethnicity and Attitudes toward Patient Autonomy”).CrossRefGoogle Scholar
See generally, , id.Google Scholar
While we might say that a Korean-American's choice to rely on family members is itself an expression of autonomous self-determination, the Blackhall studies reveal that we would have to impose the importance of autonomy on Koreans in order to reach this explanation since this culture places little value on the Western notion of individual self determination.Google Scholar
Bowman, K. W. Hui, E. C., “Bioethics for Clinicians: 20. Chinese Bioethics” Canadian Medical Association Journal 163, no. 11 (2000): 1481–1485.Google Scholar
Id., at 1481–1482. See also Tse, C. Y. et al., “Breaking Bad News: A Chinese Perspective,” Palliative Medicine 17, no. 4 (2003): 339–343. (Reporting similar findings among Chinese patients from Hong Kong to conclude, “The concept of self is a relational one in Chinese culture and family relationship emphasizes harmonious interdependence.” But warning that “although autonomy is not a traditional Chinese concept, veracity is.”) See also, Huang, X. Butow, P. Meiser, B. Goldstein, D., “Attitudes and Information Needs of Chinese Migrant Cancer Patients and Their Relatives,” Australian and New Zealand Journal of Medicine 29 (1999): 207–213 (confirming same findings among 36 Chinese–Australian cancer patients). However, see also Tzuh Tang, S. Lee, S.-Y., “Cancer Diagnosis and Prognosis in Taiwan: Patient Preferences Versus Experiences,” Psycho-Oncology 13, no. 1 (2003): 1–13, at 8. (Despite authors’ assertion that Asian cultures hold different views towards individuality and personal rights than Westerners, the study of 364 Taiwanese cancer patients data did not fully support this conclusion. There, Taiwanese patients “strongly proclaimed their superior rights to be informed about their disease over the family. In general, cancer patients had a higher preference for healthcare professionals to inform them than to inform their family members. They also preferred to receive information before their family members did….The argument that cancer patients from an Asian culture [i.e. Chinese/Taiwanese culture] have different preferences regarding being informed of their diagnosis and prognosis and that family members have legitimate superior power in decision making could not be supported by data from this group of cancer patients.”)CrossRefGoogle Scholar
Carrese, J. A. Rhodes, L. A., “Western Bioethics on the Navajo Reservation – Benefit or Harm?” JAMA 274, no. 10 (1995): 826–829.CrossRefGoogle Scholar
Id.Google Scholar
Id., at 828.Google Scholar
See Carrese, , supra note 64, at 829. But see also Taylor, J. S., “Autonomy and Informed Consent on the Navajo Reservation,” Journal of Social Philosophy 35, no. 4 (2004): 506–16. (Taylor examines the same traditional Navajo principle that admonishes physicians not to speak negatively and concludes the underlying ethical principle of autonomy is nevertheless shared by Navajo patients. However, Taylor asserts that protecting the well being of the Navajo patient is the core ethical value served by informed consent models rather than protection of patient autonomy and therefore applying a lower standard of informed consent to Navajo patients than to others does not violate principles of autonomous decision making shared by Navajos and non-Navajos alike).Google Scholar
Hahn, R. A., “Culture and Informed Consent: An Anthropological Perspective,” Appendix F in Making Health Care Decisions: The President's Commission for Ethical Problems in Medicine and Biomedical and Behavioral Research 3, no. 3 (1982): 37–57.Google Scholar
Torke, A. M. Corbie-Smith, G. M. Branch, W. T., ‘African American Patients’ Perspectives on Medical Decision Making,” Archives of Internal Medicine 164, no. 5 (2004): 525–530.CrossRefGoogle Scholar
Id., at 527.Google Scholar
Nearly half the African-American patients in this study − 12 of 25 respondents – wanted their provider to make medical decisions; five respondents wanted a joint decision; three patients wanted to make the decision themselves; and five responses could not be classified. Id., at 528.Google Scholar
Id., at 529.Google Scholar
Id., at 529.Google Scholar
See Torke, et al., supra note 69, at 529.Google Scholar
See e.g., Sehgal, A. Galbraith, A. Chesney, M. Schoenfeld, P. Charles, B. Lo, B., “How Strictly Do Dialysis Patients Want Their Advance Directives Followed?” JAMA 267, no. 1 (1992): 59–63; Nelson, J. L., “Taking Families Seriously,” Hastings Center Report 22, no. 4 (1992): 6–12.CrossRefGoogle Scholar
See Hanssen, I., “From Human Ability to Ethical Principle: An Intercultural Perspective on Autonomy,” Medicine, Health Care and Philosophy 7, no. 3 (2005): 269–279, observing, It is important to distinguish between respect for a patient's right to be autonomous and autonomy as a cultural phenomenon. To respect a patient's right to be autonomous is correlated to respecting a patient's right to choose. “As will be discussed later, this right to choose does no equal a mandatory duty to choose, although it seems to do just that in the minds of many nurses. It seems that the law of consent, like the minds of nurses Hanssen describes above has transformed the merely Western cultural notion of autonomy, into a mandatory, legal obligation.CrossRefGoogle Scholar
See generally, Blackhall, et al., supra note 50, at 59–71.Google Scholar
See Blacksher, E., “Desperately Seeking Difference,” Cambridge Quarterly of Healthcare Ethics 7, no. 1 (1998): 11–16, at 11.CrossRefGoogle Scholar
Bowman, Hui, , supra note 53, at 1483–4.Google Scholar
Daar, A. S. et al., “Bioethics for Clinicians: 21. Islamic Bioethics,” Canadian Medical Association Journal 164, no. 1 (2001): 60–61 (although Dr. Daar ultimately concludes Sunni and Shia bioethics differ little).Google Scholar
See e.g., Davidson, J., “Generations Have Different Views of the Church,” National Catholic Reporter (October 29, 1999) (online journal reporting results of survey of Catholic believers) available at <http://www.natcath.com/NCR_Online/archives/102999/102999o.htm#TOP> (last visited January 8, 2008); see also, Harper, C., “Catholic Pluralism Is Subject of One Creighton Study,” Center for the Study of Religion and Society Newsletter 7 (1994) available at <http://puffin.creighton.edu/human/CSRS/news/S96–1.html> (last visited January 8, 2008); see also, D’Antonio, W., “Autonomy and Democracy in an Autocratic Organization: The Case of the Roman Catholic Church,” Sociology of Religion 55, no. 44 (1994): 379–396.Google Scholar
Markwell, H. J. Brown, B. F., “Bioethics for Clinicians: 27. Catholic Bioethics,” Canadian Medical Association Journal 165, no. 2 (2001): 189–191.Google Scholar
Id., at 191.Google Scholar
Id., at 190.Google Scholar
Goldsand, G. et al., “Bioethics for Clinicians: 22. Jewish Bioethics,” Canadian Medical Association Journal 164, no. 2 (2001): 219–221, at 221.Google Scholar
Id., at 221Google Scholar
Id., at 220.Google Scholar
Hern, H. E. Jr. et al., “The Difference That Culture Can Make in End-of-Life Decision Making,” Cambridge Quarterly of Healthcare Ethics 7, no. 1 (1998): 27–40.CrossRefGoogle Scholar
Beyond the scope of this paper, but also of interest to any considered evaluation of our informed consent law must be the question of whether it is physicians or other actors in the clinical setting that should be charged with disclosure of medical information. Understandably, the law identifies a single medical actor who has control over the relationship and can be held accountable for the behavior of others to charge with the informed consent duty to disclose. However, in another setting it would be fruitful to consider whether the model for a more extended informed consent conversation should admit for discussion (which already occurs) between patients and health professionals besides and in addition medical doctors.Google Scholar
See Levinson, W. et al., “Not All Patients Want to Participate in Decision Making: A National Study of Public Preferences,” Journal of General Internal Medicine 20, no. 6 (2005): 531–535, at 533 (citing studies by Deber, Charles, and others, finding the majority of patients prefer to rely on physicians to make treatment decisions.)CrossRefGoogle Scholar
Id., at 533–534.Google Scholar
See e.g., Hern, , supra note 88, at 33–34 (medical staff hold Western perspective that non-disclosure harms patients rights, deprives patient of opportunity to set affairs in order and compromises patients’ self-care.)Google Scholar
Hispanic, Native American, Italian, Greek, Russian, and many Asian societies may prefer a decision-making model that reflects the “collectivist” traditions dominant in their culture. See Oliffe, J., “‘Truth Telling’ and Cultural Assumptions in an Era of Informed Consent,” Family and Community Health 30, no. 1 (2007): 5–15.CrossRefGoogle Scholar
See Car, J. Partridge, M. R., “Cross-cultural Communication in Those with Airway Diseases,” Chronic Respiratory Disease 1, no. 3 (2004): 153–160 (encouraging physicians to improve cultural competency to reduce health care disparities and inequality).Google Scholar
Huang, X. et al., “Attitudes and Information Needs of Chinese Migrant Cancer Patients and their Relatives,” Australian and New Zealand Journal of Medicine 29 (1999): 207–213, at 211.CrossRefGoogle Scholar
Tse, C. Y., “Breaking Bad News: A Chinese Perspective,” Palliative Medicine 17, no. 4 (2003): 339–343, at 340.CrossRefGoogle Scholar
Blackhall, L. J. et al., “Bioethics in a Different Tongue: The Case of Truth-Telling,” Journal of Urban Health: Bulletin of the New York Academy of Medicine 78, no. 1 (2001): 59–71.CrossRefGoogle Scholar
Goldstein, D., “Communicating in a Multicultural Society II: Greek Community Attitudes Towards Cancer in Australia,” Internal Medicine Journal 32, no. 7 (2002): 289–296, at 295.CrossRefGoogle Scholar
Lapine, A. et al., “When Cultures Clash: Physician, Patient, and Family Wishes in Truth Disclosure for Dying Patients,” Journal of Palliative Medicine 4, no. 4 (2001): 475–480, at 477.CrossRefGoogle Scholar
See Blackhall, , supra note 86, at 60.Google Scholar
Haffner, L., “Cross-Cultural Medicine A Decade Later,” Western Journal of Medicine 157, no. 3 (1992): 255–259, at 257 (describing informed consent case where daughters opposed giving mother cancer diagnosis information).Google Scholar
See Goldstein, , supra note 98, at 292.Google Scholar
Id., at 294. (Goldstein notes similar fears held by some Italian and Arabic women).Google Scholar
Id.Google Scholar
Chan, E. C. Y., “Cultural Sensitivity and Informed Decision Making About Prostate Cancer Screening,” Journal of Community Health 28, no. 6 (2004): 393–405, at 393.CrossRefGoogle Scholar
Id, at 397.Google Scholar
Id., at 399.Google Scholar
Id., at 397.Google Scholar
Id., at 401.Google Scholar
Specifically, the Canterbury court required disclosure of material risks and defined those thusly: “A risk is material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk in deciding whether or not to forego the proposed therapy.” Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), cert. denied, 490 U.S. 1065 (1972).Google Scholar
Nathanson v. Kline, 350 P.2d 1093 (Kan. 1960).CrossRefGoogle Scholar
See Mitchell, J., “Cross-Cultural Issues in the Disclosure of Cancer,” Cancer Practice 6, no. 3 (1998): 153–160.CrossRefGoogle Scholar
See Bowman, Hui, , supra note 62, at 1483. (Emphasis added.)Google Scholar
Lapine, A. Wang-Cheng, R. Goldstein, M. Nooney, A. Lamb, G. Derse, A. R., “When Cultures Clash: Physician, Patient and Family Wishes in Truth Disclosure for Dying Patients,” Journal of Palliative Medicine 4, no. 4 (2001): 475–480.CrossRefGoogle Scholar
Id., at 476. (Emphasis added.)Google Scholar
Id., at 477. (Emphasis added.)Google Scholar
Id., at 478.Google Scholar
Id., at 475.Google Scholar
In Salgo v. Leland Stanford Jr. University Board of Trustees, 317 P.2d 170, 181 (Cal. Dist. Ct. App. 1957) (holding a physician violates duty to patient and is subject to liability if physician withholds any facts necessary for patient to form an intelligent basis for consent to proposed treatment and physician may not minimize known dangers in order to induce patient consent).Google Scholar
It is outside the scope of this paper to explore the variety of ethical systems that exist to inform the overall field of bioethics, and medical ethics in particular, except to the extent that these ethical systems derive from particular cultural, ethnic and religious minorities used as exemplars herein. Therefore, whether one chooses a utilitarian or consequentialist approach to ethical theory and seeks to maximize good while minimizing harm; or whether one adopts a deontological view of duty and obligation; or whether the more modern approaches such as liberal individualism or case-specific approach of casuistry is most appealing, where the question of informed consent is concerned, the fundamental problem of identifying a common moral system is solved in this paper by relying on the substantial consensus that bioethicists have achieved around three fundamental principles approach to bioethics. The principles of justice, beneficence and autonomy, identified in The Belmont Report of the National Commission for the Protecting of Human Subjects of Biomedical and Behavioral Research (1974–1978) represent a consensus foundational to a common theory of medical ethics. In November 1979, The Belmont Report was published in the Federal Register, available at <http://www.hhs.gov/ohrp/humansubjects/guidance/belmont.htm> and to this day articulates the unifying ethical principles which underlie human subject research and clinical ethics today. See, 45 C.F.R. Pt. 46. While principlism, as this ethical theory has come to be called, is not without its critics (see, e.g., Arras, J. D., “Principles and Particularity: The Roles of Cases in Bioethics,” Indiana Law Journal 69 (1994): 983–1014, at 991) few would disagree that these three values, applied to clinical and research medicine, constitute the core of Western bioethical theory.Google Scholar
Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905).Google Scholar
Id., at 268.Google Scholar
Id., at 265.Google Scholar
Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906).Google Scholar
See Scholoendorff v. Society of New York Hospitals, 211 N.Y. 125, 105 N.E. 92 (1914).Google Scholar
There are a host of reasons why this may be true. Perhaps women are represented in the reported cases disproportionately because only the most egregious informed consent fact patterns are tried and women are more often victims of individual rights’ violations. Alternatively, perhaps women are the primary consumers of certain types of health care and those providers are more often open to negligence claims due to the nature of their practices. The list of possible explanations is long. And to hazard a guess without further study of these cases, the types of consent cases women bring, the actual incidence of their success and failure, and other empirical data, little more can be said at this juncture.Google Scholar
Nathanson v. Kline, 187 Kan. 186, 354 P2d 670, 673 (1960 hearing denied).Google Scholar
Rubino v De Fretias, 648 F.Supp 182, 185 (1986)CrossRefGoogle Scholar
Logan v. Greenwich Hospital Association, 191 Conn. 282, 465 A.2d 294 (1983).Google Scholar
Id., 191 Conn. at 289.Google Scholar
See Wilkinson v. Vesey, 110 R.I. 606, 627, 295 A.2d 676, 689 (“It is our belief that in due deference to the patient's right to self determination, a physician is bound to disclose all the known material risks peculiar to he proposed procedure.”)Google Scholar
See Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.) cert. denied 409 U.S. 1064 (1972).Google Scholar
See Wilkinson v. Vesey, 110 R.I. at 627, 295 A.2d at 676.Google Scholar
Id., 191 Conn. at 289, 264 A.2d at 299.Google Scholar
See, e.g., Rasmussen v. Skagit County, 448 F. Supp.2d. 1203 (W.D. 2006)Google Scholar
Quintanilla v. Dunkelman, 34 Cal. Rptr. 3d 557 (2005).Google Scholar
Damages for the patient were fixed at $380,000.00 and for her husband, the jury awarded a total of $60,000.00 for present and future loss of consortium.Google Scholar
Quintanilla, 133 Cal. App. 4th at 116.Google Scholar
Id., 133 Cal. App 4th at 100.Google Scholar
Quintanilla, 133 Cal. App. 4th at 114. (Emphasis added.)Google Scholar
In the section that follows, I argue that the fiduciary model, in fact, is preferable.Google Scholar
Quintanilla, 133 Cal. App. 4th at 111.Google Scholar
See, Quintanilla, 133 Cal. App. 4th at 116–17 (court concludes that in absence of translation of consent document cannot know whether recitels were understood.)Google Scholar
See Lindenthal, J. J. Schneider, M., Health Concerns of Hispanics in New York City (Mellen Research University Press, 1991): 7–8.Google Scholar
In Lockett v. Goodill, for example, 430 P.2d 589, 591 (Wash. 1967) a Washington court found “the relationship of patients and physicians is a fiduciary one of the highest degree.Google Scholar