Commentary: Truce on the Battlefield: A Proposal for a Different Approach to Medical Informed Consent

A most thoughtful and useful exploration of physicians” understanding and misunderstanding of informed consent is contained in Schuck Peter , “Rethinking Informed Consent,” Yale L.J., 103 (1994): at 902.

See Moore v. Regents of University of California, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 793 P.2d 479 (Cal. 1990), cert. denied, 111 S. Ct. 1388 (1991).

See, for example, Hall Mark A. , “Informed Consent to Rationing Decisions,” Milbank Quarterly, 71, no. 4 (1993): 645–68; and its responses and counter-responses: Appelbaum Paul S. , “Must We Forgo Informed Consent to Control Health Care Costs? A Response to Mark Hall,” Milbank Quarterly, 71, no. 4 (1993): 669–76; Mechanic David , “Trust and Informed Consent to Rationing,” Milbank Quarterly, 72, no. 2 (1994): 217–23; and Hall Mark A. , “Disclosing Rationing Decisions: A Reply to Paul S. Appelbaum,” Milbank Quarterly, 72, no. 2 (1994): 211–15.

See, for example, Arato v. Avedon, 5 Cal. 4th 1172, 23 Cal. Rptr. 2d 131, 858 P.2d 598 (1993); Sullivan R. Lee , “Making Up Your Own Mind,” Forbes, Nov. 21, 1994, at 212; and Schuck, supra note 1.

See August Piper Jr., “Truce on the Battlefield: A Different Approach to Medical Informed Consent,” Journal of Law, Medicine & Ethics, 22, no. 4 (1994): at 302–04.

This approach was first set forth in Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960) rehearing denied 187 Kan. 186, 354 P.2d 670 (1960).

This approach was established in the landmark federal case, Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).

See, for example, Scott v. Bradford, 606 P.2d 554 (Okla. 1979).

See Piper, supra note 5, at notes 64 and 66 and accompanying text.

Dr. Piper cites ZeBarth v. Swedish Hospital Medical Center, 81 Wash. 2d 12, 499 P.2d 1 (1972).

This is essentially the basis for the “therapeutic privilege” exception to the requirement of informed consent, which Dr. Piper mentions (see Piper, supra note 5, at 302). On the privilege generally, see Elizabeth Patterson, “The Therapeutic Justification for Withholding Medical Information: What You Don't Know Can't Hurt You, or Can It?” Neb. L. Rev., 64 (1985): 721–71; and Somerville Margaret A. , “Therapeutic Privilege: Variation on the Theme of Informed Consent,” Law, Medicine & Health Care, 12, no. 4 (1984): 4–12.

Cardozo Benjamin N. , The Nature of the Judicial Process (New Haven: Yale University Press, 1921, rpt. 1960), at 122. Arguing against overzealous application of the doctrine of stare decisis, the learned jurist observed: “The picture of the bewildered litigant lured into a course of action by the false light of a decision, only to meet ruin when the light is extinguished and the decision is overruled, is for the most part a figment of excited brains.”

It is another haunting irony that doctors commonly make the very mistake about the law that they believe the law makes about medicine. In a twist on the old adage about the grass always being greener on the other side of the fence, each profession expects near absolute clarity and certainty from the other on complex issues, while insisting that, on its own side, it is not always possible to be precise and unambiguous.

See Piper, supra note 5, at note 115 and accompanying text.

Id. at 307.

For an up-to-date listing of which states follow which standard for defining the duty of disclosure, see Rosoff A.J. , “Consent to Medical Treatment,” in McDonald M. Kaufman R. Capron A. and Birnbaum I. , eds., Treatise on Health Care Law (New York: Matthew Bender, Vol. 3, 1994), Appendix 17–A.

The word disclaimer is mine. I use it to put a lawyer's gloss on what Dr. Piper intended more as a humble admission of professional limitations.

See Piper, supra note 5, at 310 (emphasis added).

Id. at 309.

Id. at 310.

Although I argue here against a standard this lenient, I must acknowledge that it is very similar to the “business judgment rule,” which is widely applied to measure the fiduciary duty that directors and officers owe to their corporations. American Law Institute, “Principles of Corporate Governance: Analysis and Recommendations (Tent. Draft No. 4),” §4.01 (1985) (“A director or officer has a duty … to perform … in good faith, in a manner that he reasonably believes to be in the best interests of the corporation….”) For a good overview of the business judgment rule and its rationale, plus references to fuller discussions, see Hamilton Robert , Corporations (St. Paul: West Publishing, 4th ed., 1990), pp. 699–704.

Paraphrasing Piper, supra note 5, at 305.