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A “Dignitary Tort” as a Bridge between the Idea of Informed Consent and the Law of Informed Consent

Published online by Cambridge University Press:  28 April 2021

Alan Meisel
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Extract

More than 30 years have passed since the phrase informed consent was first uttered in a judicial opinion. Jay Katz's own ground-breaking work on informed consent is now more than 10 years old, and the insights of The Silent World of Doctor and Patient are so constantly fresh that it is easy to forget it too was not just recently published. While trying to develop some new thoughts about informed consent for this essay—a task made virtually impossible by Jay's work—I had reviewed an article by Professor Joseph Goldstein, one of Jay's frequent collaborators. Goldstein recounted discovering an index card he had written almost 30 years earlier (ironically for me, the year I was born) containing some notes about Harold Lasswell's work. Not only is law a seamless web, it is a timeless one.

Jay's work on informed consent is pervaded by a timeless theme that I wish to address here: how the dignity of the individual, the shining beacon of the idea of informed consent, is sorely neglected in the law of informed consent.

Type
The Silent World
Information
Law, Medicine and Healthcare , Volume 16 , Issue 3-4 , Winter 1988 , pp. 210 - 218
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

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References

Katz, , “Informed Consent—A Fairy Tale: Law's Vision”, University of Pittsburgh Law Review, 39 (1977): 137.Google Scholar
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Goldstein, , “For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent and the Pleas Bargain”, Yale Law Journal, 84 (1975): 683.Google Scholar
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See Meisel, & Kabnick, , “Informed Consent to Medical Treatment”, University of Pittsburgh Law Review, 41 (1980): 407.Google Scholar
Most jurisdictions apply a so-called objective test of causation which requires a plaintiff-patient to demonstrate that a reasonable person would not have consented to the treatment actually undergone had adequate disclosure been made, see, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). Only a few instead apply a subjective test in which causation is based solely on the credibility of the plaintiff-patient's testimony. See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1980). Permitting recovery for the nondisclosure of alternatives is another example of a development tending to honor patient self-determination. See, e.g., Keogan v. Holy Family Hosp., 95 Wash.2d 306, 622 P.2d 1246, 1254–55 (1980).Google Scholar
Katz, , supra note 2, at xiv—xvi & passim.Google Scholar
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“An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence. Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir. 1972); accord Cornfeldt v. Tongen, 262 N.W.2d 795, 699 (1977). Although not mentioning explicitly the materialized risk requirement, there can be no doubt that the earliest informed cases proceed on the assumption that bodily harm is required.Google Scholar
See Salgo v. Leland Stanford, Jr. University, 154 Cal. App.2d 560, 317 P.2d 170 (1957).Google Scholar
In so doing, they have not gone unaided by scholars. See, e.g., Plant, “An Analysis of “Informed Consent,”” Fordham Law Review, 639 (1968), whose desiccated views of the law of torts have possibly done more to undermine the spirit of informed consent than those of any other single person.Google Scholar
Restatement (Second) Torts § 18 (1965).Google Scholar
1 Harper, F. James, F. & Grey, O., The Law of Tort § 3.2, at 268 (1986) (hereinafter Harper & James).Google Scholar
It may also explain, though only in part, why courts and legislatures have generally moved away from battery (and to negligence) as the appropriate theory for recovery for lack of informed consent. Other explanations, however, are that the statute of limitations in negligence is generally more favorable to plaintiffs, but recovery in negligence is otherwise far more difficult for plaintiffs because of such requirements as proof of the standard of care with the concomitant need in many jurisdictions for expert evidence, more stringent proof of causation, and of course proof of bodily injury.Google Scholar
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Williams, Mohr v., 95 Minn. 261, 104 N.W. 12 (1905) ($10,000 judgment for beneficial surgery on plaintiffs left ear because patient had only consented to surgery on right ear, though verdict excessive); Throne v. Wandell, 176 Wis. 97, 186 N.W. 146 (1922) ($2000 award for “distress and humiliation and pain” arising from nonconsensual extraction of plaintiff's teeth which were “roken-down” and “[i]t was only a question of time” when they would have to be extracted anyway); cf. Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941) (“A surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent”); but see Bennan v. Parsonnet, 83 N.J.L. 20, 83 Atl. 948 (1912) (plaintiffs verdict and judgment for $1000 for surgical repair of right groin rupture when plaintiff had consented to left repair).Google Scholar
Ironically, the one state that has refused to budge from the notion that inadequate disclosure is remediable as a battery rather than negligence has done so in a way that denies patients protection from nondisclosing doctors. In Pennsylvania, a doctor who fails to inform a patient about the possible adverse consequences of an oral medication does not appear likely to be held liable for lack of informed consent because there has been no touching of the patient by the doctor. Boyer v. Smith, 345 Pa. Super. 66, 497 A.2d 646 (1985); Malloy v. Shanahan, 280 Pa. Super 440, 421 A.2d 803 (1980).Google Scholar
See, e.g., Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968) (negligent infliction of emotional distress); State Rubbish Collectors v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952) (intentional infliction of emotional distress).Google Scholar
See Keeton, W. Dobbs, D. Keeton, R. Owen, D., Prosser and Keeton on Torts § 54, at 366 (5th ed. 1984).Google Scholar
The gradual steps by which recovery has been allowed for negligent infliction—first, to those who suffered a physical impact, no matter how slight; then to those who suffered no physical impact but feared for their own safety; then to those who neither suffered any physical impact nor feared for their own safety, but who (but for the grace of God) might have suffered a physical impact or feared for their own safety and thus were within the “zone of danger,” see Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), are testimony to the fact that, as in most other things, where there is a will, there is a way. Other requirements for recovery in Dillon v. Legg were a physical harm resulting from the emotional harm and a close familial relationship between the victim and the plaintiff. These requirements have been slowly eroded in California and other jurisdictions. A number of cases have dispensed with the requirement of physical harm resulting from the emotional harm. See, e.g., James v. Lieb, 375 N.W.2d 109 (Neb. 1985). The requirement of a close familial relationship has seemingly evolved into a requirement that there be a relationship based on “blood, marriage or a functioning family unit.” Kriventsov v. San Rafael Taxicabs, Inc., 186 Cal. App.3d 1445, 229 Cal. Rptr. 768, 770 (1986). Consequently, grandchildren, Vasquez-Gonzalez v. Superior Court, 186 Cal. App.3d 1507, 231 Cal. Rptr. 458 (1986); a fiance, Pieters v. B-Bright Trucking, 669 F. Supp. 1463 (N.D. Ind. 1987); and “live-in significant others” have been permitted to recover, Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal. Rptr. 661, 703 P.2d 1 (1985); Ledger v. Tippitt, 164 Cal. App.3d 859, 210 Cal. Rptr. 814 (1985); but see Kately v. Wilkinson, 148 Cal. App. 3d 576, 195 Cal. Rptr. 902 (1983) (denying recovery to mother and child witnessing death of child's best friend).Google Scholar
Prosser, supra note 22, § 54, at 363; id. at 60 n.34 (Supp. 1988).Google Scholar
5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958).Google Scholar
167 Cal. Rptr. 831, 27 Cal.3d 916, 616 P.2d 813 (1980). This holding was presaged by Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), which did not involve a doctor-patient relationship. See also Accounts Adjustment Bureau v. Cooperman, 158 Cal. App.3d 844, 204 Cal. Rptr. 881 (1984) (recovery by parents for emotional distress due to negligent diagnosis of child); Rowe v. Bennett, 514 A.2d 802 (Me. 1986) (cause of action stated when plaintiff suffered emotional distress resulting from her psychotherapist becoming emotionally involved with her “companion”); Martrell v. St. Charles Hosp., 137 Misc.2d 980, 523 N.Y.S.2d 342 (Sup. Ct. 1987) (negligent diagnosis of cancer).Google Scholar
See Capron, “Informed Consent in Catastrophic Disease Treatment and Research,” University of Pennsylvania Law Review, 340, 403–423 (1974).Google Scholar
The so-called therapeutic privilege permits physicians to withhold information otherwise obligated to be disclosed if the information would be damaging to the patient. See, e.g., Canterbury v. Spence, 464 F.2d at 789; see generally Meisel, “The “Exceptions” to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking,” Wisconsin Law Review, 413, (1979): 460–70.Google Scholar
See Keogan v. Holy Family Hosp., 95 Wash.2d 306, 622 P.2d 1246, 1251 (1980) (“The facts which must be disclosed are all those facts the physician knows or should know which the patient needs in order to make the decision;” emphasis added); Gates v. Jensen, 92 Wash.2d 246, 595 P.2d 919, 923 (1979).Google Scholar
Restatement (Second) Torts § 8A (1965).Google Scholar
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Restatement (Second) Torts §§ 652A-652E (1965).Google Scholar
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Id. § 9.6, at 633–34.Google Scholar
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Id. § 9.6, at 644.Google Scholar
Id. § 9.6, at 644–45.Google Scholar
See Boyer v. Smith, 345 Pa. Super. 66, 497 A.2d 646 (1985); Malloy v. Shanahan, 280 Pa. Super 440, 421 A.2d 803 (1980).Google Scholar
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1 Harper & James, supra note 14, § 9.6, at 637.Google Scholar
Katz, , supra note 1, passim.Google Scholar
See Cobbs v. Grant, 8 Cal.3d 229, 104 Cal. Rptr. 505, 502 P.2d 1, 10 (1972); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1106 (1960).Google Scholar
One case involving such a failure is Bang v. Charles T. Miller Hosp., 251 Minn. 427, 88 N.W.2d 186 (1958). Although litigated after the “discovery” of informed consent, there is no reason why it could not have been brought under the aegis of informed consent, Professor Plant's argument to the contrary notwithstanding. See supra note 12.Google Scholar
See, e.g., McGrady v. Wright, 151 Ariz. 534, 729 P.2d 338 (Ct. App. 1986); Logan v. Greenwich Hosp. Assn. 465 A.2d 294 (Conn. 1983); Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977); Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d 285, 289 (Okla. 1984); Keogan v. Holy Family Hosp., 95 Wash.2d 306, 622 P.2d 1246 (1980); cf. Lipscomb v. Memorial Hosp., 733 F.2d 332 (4th Cir. 1984) (Md. law) (plaintiff's judgment based on nondisclosure of materialized risk, but defendant-doctor also failed to disclose alternatives such as antacids and other “conservative measures short of surgery” in treatment of hiatal hernia).Google Scholar
See supra note 10.Google Scholar
See discussion infra of informed refusal.Google Scholar
465 A.2d 294 (Conn. 1983).Google Scholar
686 P.2d 285, 289 (Okla. 1984).Google Scholar
A small minority of jurisdictions employ a more patient-oriented (or “subjective”) test of causation under which the plaintiff is permitted to show that be would have declined treatment had the undisclosed risk been disclosed. See Scott v. Bradford, 606 P.2d 554 (Okla. 1980).Google Scholar
Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d at 289.Google Scholar
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Katz, , supra note 1, at 138; Katz, supra note 2, at 60–62 & passim.Google Scholar
Whether or not they have the right to decline treatment when the refusal would lead to death is a matter of much dispute. It is virtually certain that there is a right to decline treatment when it would merely prolong the process of dying, but not necessarily when it is life-saving. Compare John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971), with In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). Nonetheless, it is increasingly clear that, at least presumptively, such a right exists. See, e.g., In re Beth Israel Medical Center, 136 Misc.2d 931, 519 N.Y.S.2d 511, 513 (Sup. Ct. 1987) (“There is no question that a competent adult has the right to refuse treatment and that this right, in the absence of special circumstances, prevails over the State's parens patriae interests. This is so even if the treatment rejected or terminated will result in death.”)Google Scholar
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Truman v. Thomas, 27 Cal. 3d 285, 165 Cal. Rptr. 308, 611 P.2d 902 (1980).Google Scholar
Katz, , supra note 1, at 138.Google Scholar
See Ingber, “Rethinking Intangible Injuries: A Focus on Remedy,” California Law Review, 73 (1985): 772.Google Scholar