The Doctrine of Informed Consent: To Inform or Not to Inform?
Walter, Paula, St. John's Law Review
Two decades have passed since the New York Legislature enacted the Medical Malpractice Act (the "Act").1 In a climate of controversy within the medical and legal communities,2 the Act provided a statutory basis for a lack of informed consent claim, established standards for disclosure of information to patients by physicians, and set parameters within which medical providers must obtain informed consent. Over the years, much scholarly effort has been directed at determining when and why the transformation from the common law requirement of "consent" to "informed consent" occurred.3 Academic discussion has also focused on whether the cause of action for a failure to obtain informed consent is grounded in contract law,4 fiduciary law,5 negligence or intentional tort law.6 Since the enactment of the Act in 1975, these discussions have been muted in New York State, but language in cases subsequent to its passage still harks back to that earlier controversy.
With the advantage of hindsight provided by a twenty year time prism, together with a significant number of appellate-level decisions, a retrospective of what has transpired in this area is proper. Appropriately, this article will examine the case law in the field of informed consent in order to analyze the ultimate effects of the Act and to determine whether any markers or guideposts for both physicians and patients have been created by this statutory map. In this context, this article will determine whether the statute has weaved a path of accommodation between doctor and patient or whether medical paternalism continues, and whether the legislation has been consumer friendly.
This article, in Part I, will begin by analyzing the philosophical underpinnings upon which the legal assumptions of the doctrine of informed consent are predicated. Part II will examine the provisions of the statute, while Part III will scrutinize the case law interpretation of the legislation. Finally, Part IV concludes with an examination of the postulates yielded by cases in the area of informed consent.
I. PRINCIPLES UNDERLYING THE DOCTRINE OF INFORMED CONSENT
The concept of self-determination, which assures that man is master of his destiny, is deeply rooted in our legal system and is the legal mirror of the Western values system, which exalts the individual.7 Judge Benjamin Cardozo expounded the concept of self-determination in Schloendorff v. New York Hospital8 by noting that "[e]very human being of adult years and sound mind has a right to determine what shall be done to his body."9 Based on this statement of principle, judicial decisions have spawned the legal principles of consent, which eventually developed into the doctrine of informed consent.lo The doctrine has evolved to reflect strong judicial deference for individual autonomy-that is, the belief that an individual has the right to be free from nonconsensual interference with his or her person.ll This fundamental principle of autonomy incorporates the notion that a person has the right to control his or her choice.lz In the medical context, the concept of autonomy translates into an understanding that the individual has an unfettered right to choose the course of medical treatment, including the right not to pursue treatment and to desist from any treatment where such medical protocol has already been initiated.l3 By corollary, this precept implies that the decision of the patient will be respected.
At the same time that the medical provider must respect the autonomy of the patient, the Hippocratic Oath" and the physician's training obligate the physician to provide medical care to those who seek his services. Specifically, the medical provider is guided by the principle of beneficence, which dictates that the physician actually contribute to the patient's health rather than merely avoid harm.15 The principle of beneficence competes with the principle of autonomy by requiring the physician to use his training to decide the best treatment of his patient, who may in fact prefer a different medical treatment. …