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

Katz , “Informed Consent—A Fairy Tale: Law's Vision”, University of Pittsburgh Law Review, 39 (1977): 137.

Katz J. , The Silent World of Doctor and Patient New York: The Free Press (1984).

Goldstein , “For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent and the Pleas Bargain”, Yale Law Journal, 84 (1975): 683.

Id. at 703.

See Meisel & Kabnick , “Informed Consent to Medical Treatment”, University of Pittsburgh Law Review, 41 (1980): 407.

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).

Katz , supra note 2, at xiv—xvi & passim.

Goldstein , supra note 3, at 691.

Katz , supra note 2, at 68.

“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.

See Salgo v. Leland Stanford, Jr. University, 154 Cal. App.2d 560, 317 P.2d 170 (1957).

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.

Restatement (Second) Torts § 18 (1965).

1 Harper F. James F. & Grey O. , The Law of Tort § 3.2, at 268 (1986) (hereinafter Harper & James).

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.

Kull Lloyd v. , 329 F.2d 168 (7th Cir. 1964) ($500).

Belinfante Bailey v. , 135 Ga. App. 574, 218 S.E.2d 289 (1975) (reversal of defendant-dentist's directed verdict).

Strain Rolater v. , 39 Okla. 572, 137 p. 96 (1913) ($1000).

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).

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).

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).

See Keeton W. Dobbs D. Keeton R. Owen D. , Prosser and Keeton on Torts § 54, at 366 (5th ed. 1984).

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).

Prosser, supra note 22, § 54, at 363; id. at 60 n.34 (Supp. 1988).

5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958).

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).

See Capron, “Informed Consent in Catastrophic Disease Treatment and Research,” University of Pennsylvania Law Review, 340, 403–423 (1974).

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.

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).

Restatement (Second) Torts § 8A (1965).

Id. § 46(1).

Prosser, supra note 22, § 117, at 851.

Restatement (Second) Torts §§ 652A-652E (1965).

Warren & Brandeis , “The Right to Privacy”, Harvard Law Review, 4, (1890): 193.

1 Harper & James, supra note 14, § 9.6, at 636.

Prosser, supra note 22, § 117, at 851–54; see also Restatement (Second) Torts § 652C (1965).

1 Harper & James, supra note 14, § 9.6, at 631.

Id. § 9.6, at 633–34.

Id.

Id. § 9.6, at 644.

Id. § 9.6, at 644–45.

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).

Meisel , “The Expansion of Liability for Medical Accidents: From Negligence to Strict Liability by Way of Informed Consent”, Nebraska Law Review, 56, 51 (1977): 77–82.

1 Harper & James, supra note 14, § 9.6, at 637.

Katz , supra note 1, passim.

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).

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.

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).

See supra note 10.

See discussion infra of informed refusal.

465 A.2d 294 (Conn. 1983).

686 P.2d 285, 289 (Okla. 1984).

A small minority of jurisdictions employ a more patient-oriented (or “subjective”) test of causation under which the plaintiff is permitted to show that he would have declined treatment had the undisclosed risk been disclosed. See Scott v. Bradford, 606 P.2d 554 (Okla. 1980).

Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d at 289.

Id. at 288.

Katz , supra note 1, at 138; Katz, supra note 2, at 60–62 & passim.

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.”)

To date, there are a very small number of so-called informed refusal cases. See Moore v. Preventive Medicine Medical Group, Inc., 178 Cal. App. 3d 728, 223 Cal. Rptr. 859 (1986); Truman v. Thomas, 27 Cal. 3d 285, 165 Cal. Rptr. 308, 611 P.2d 902 (1980); Crisher v. Spak, 471 N.Y.S.2d 741 (Sup. Ct. 1983); cf. In re Farrell, 108 N.J. 335, 529 A.2d 404, 410 (1987) (Right to give an informed refusal is the logical correlative of the right to give informed consent).

Truman v. Thomas, 27 Cal. 3d 285, 165 Cal. Rptr. 308, 611 P.2d 902 (1980).

Katz , supra note 1, at 138.

See Ingber, “Rethinking Intangible Injuries: A Focus on Remedy,” California Law Review, 73 (1985): 772.