Academic journal article The American University Journal of Gender, Social Policy & the Law

Informed Consent: A Right without a Remedy Examined through the Lens of Maternity Care

Academic journal article The American University Journal of Gender, Social Policy & the Law

Informed Consent: A Right without a Remedy Examined through the Lens of Maternity Care

Article excerpt


The right to be secure in one's own person is a natural, fundamental right.1 Many natural rights have been legally recognized, and legal mechanisms safeguard these rights by providing legal remedies to ensure that rights exist in a practical sense rather than as theoretical concepts.2

Consider, for example, the right to procreate.3 In Skinner v. Oklahoma, the Court strongly characterized sterilization as a permanent deprivation of an important human right.4 Almost sixty years later, in Robinson v. Cutchin, the United States District Court for the District of Maryland considered a case in which the plaintiffalleged that she was sterilized during a Cesarean section surgery without her consent.5 In a cavalier manner at odds with the grave tone of the Skinner court, the Robinson court dismissed the plaintiff's case.6 The Robinson court held that because Mrs. Robinson suffered no more pain or injury than was normal following a Cesarean section, her unconsented sterilization was not harmful and her subsequent infertility was no injury.7 Furthermore, the court considered the dignity aspect of a battery action and found Mrs. Robinson's injury lacking; in effect, the court substituted its "judgment" for Mrs. Robinson's right to procreate.8 Because Maryland only recognizes informed consent violations as negligence causes of action, not battery, and Mrs. Robinson could not sustain negligence without a legally recognized injury, she was leftwithout a cause of action or a legal remedy.9 Without a remedy to assert against Dr. Cutchin's unconsented sterilization, Mrs. Robinson's right to procreate was quantified at six children.10

This Comment argues that the inadequacies of the informed consent doctrine fail to ensure the fundamental right to bodily integrity by analyzing pain management treatment during childbirth. Part II will examine the modern doctrine of informed consent and how it evolved, inquire into other areas of law to identify analogous injuries to inadequate informed consent, and discuss why maternity care is an excellent lens through which to analyze informed consent.11 To demonstrate the limitations of informed consent law in America, this Comment analyzes the law through a hypothetical built on common maternity care practices and average patient experiences.12 Part III analyzes the hypothetical scenario under the informed consent statutes of the states of New York, Washington, and Wisconsin.13 Part IV discusses the policy implications of maintaining the status quo-which largely provides no legal remedy for the failure to obtain informed consent-and will recommend that states consider adopting informational standing to ensure the right to bodily integrity is not impinged.14 Part V concludes that as the modern doctrine of informed consent evolved, it has become disconnected from its original purpose and turned the fundamental right of bodily integrity into an illusory right.15


A. Evolution of Informed Consent

Beginning with a string of cases in the early 1900s, courts began to recognize physician liability for medical battery when physicians acted without or exceeded the scope of a patient's expressed or implied consent.16 In 1957, California was the first state to articulate the modern informed consent doctrine as one of medical negligence rather than intentional tort.17 Subsequently, most states codified or affirmed through case law the physician's duty to require informed consent.18 The physician's duty, as it evolved, was defined under one of two standards: (1) the reasonable care provider, or (2) the reasonable patient.19 While the standard will determine how much information is disclosed to the patient, there is general agreement that adequate informed consent disclosures include the purpose of the proposed treatment, its risks and benefits, available alternatives (including risks and benefits of alternative treatments), and the effect of no treatment.20 Once a patient is properly informed, it is the patient's right to choose among the various alternatives rather than a physician's right to prescribe the "best" treatment, even when that choice may be the more dangerous treatment. …

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