Medical Informed Consent: General Considerations for Physicians
TIMOTHY J. PATERICK, BA; GEOFF V. CARSON, JD; MARJORIE C. ALLEN, JD; AND TIMOTHY E. PATERICK, MD, JD
Medical informed consent is essential to the physician’s ability to diagnose and treat patients as well as the patient’s right to accept or reject clinical evaluation, treatment, orboth. Medical informed consent should be an exchange of ideas that buttresses the patient-physician relationship. The consent process should be the foundation of the fiduciary relationship between a patient and a physician. Physicians must recognize that informed medical choice is an educational process and has the potential to affect the patient-physician alliance to their mutual benefit. Physiciansmust give patients equality in the covenant by educating them to make informed choices. When physicians and patients take medical informed consent seriously, the patient-physician relationship becomes a true partnership with shared decision-making authority and responsibility for outcomes. Physicians need to understand informed medical consent from an ethical foundation, as codified by statutorylaw in many states, and from a generalized commonlaw perspective requiring medical practice consistent with the standard of care. It is fundamental to the patient-physician relationship that each partner understands and accepts the degree of autonomy the patient desires in the decision-making process.
Mayo Clin Proc. 2008;83(3):313-319
Every human being of adult years and sound mind has aright 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. Justice Benjamin Cardozo, 19141 edical informed consent is ethically, morally, and legally mandated by the fiduciary responsibilities flowing from the patient-physician relationship. Negligence per se occurs when anactor’s violation of a statute or regulation causes the kind of harm the statute was intending to prevent.2 Ethically, physicians engaged in patient-physician relationships involving medical informed consent have a moral responsibility to identify the best treatments for each patient on the basis of available medical evidence and to discuss with patients the hoped-for benefits and the potential risks.Physicians must allow for patients’ questions about the proposed treatments, benefits, and risks and must answer those questions from the available medical literature and their professional experience. This exchange of information and ideas is the foundation of the patient-physician partnership and promotes informed decision making in the most complex medical situations. Legally, a physician mustunderstand that many states have codified medical informed consent into statutory law, and lack of adherence to the statute can lead to per se negligence for the physician. The jurisdictions vary, and
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violation of the statute can be considered intrinsically negligent or merely a rebuttable presumption of negligence. Several states have codified medical informed consent tovarying degrees (Table 1). All physicians would be pru- For editorial dent to educate themselves regarding comment, their states’ statutory laws concerning see page 272 medical informed consent. Further, every practicing physician should understand the underpinnings of the common-law analysis of medical informed consent and negligence. The common law and statutory law create a burden on physiciansthat varies in different jurisdictions. Ethically and legally, all physicians have a mandatory obligation to understand the medical informed consent process. Understanding this process allows for the exchange of ideas in medical practice that will yield informed decisions and will lead to the best outcomes on the basis of shared information. Further, informed consent limits the potential for...