Nursing Malpractice: Liability and Risk Management

By Charles C. Sharpe | Go to book overview

11

Legal Implications of Informed
Consent

CONSENT

In 1914, Justice Benjamin Cardozo opined: [Every human being of adult years and sound mind has a right to determine what shall be done with his own body.] (Schloendorff v. Society of New York Hospital, 105 N.E. 92 [1914], 17). The patient's act of consent imparts to a health care provider the right to treat and demands of that practitioner the right treatment. There are two fundamental moral and ethical principles inherent in this process. First is the right of free choice affirmed by Justice Cardozo, and second is the concept of nonmaleficence embodied in the Hippocratic Oath, which demands that the practitioner swear that: [[T]he regimen I adopt shall be for the benefit of my patients according to my ability and judgment and not for their hurt or for any wrong.]


Forms of Consent

There are two forms of consent: (1) expressed and (2) implied.


Expressed Consent

Expressed consent may be written or oral. Either is considered valid in most jurisdictions. However, in the event of a lawsuit where consent, or al-

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