The Rebirth of Informed Consent: A Cultural Analysis of the Informed Consent Doctrine after Schreiber V. Physicians Insurance Co. of Wisconsin
Ketler, Suzanne K., Northwestern University Law Review
In recent decades, there has been a social and cultural movement directed toward affording pregnant, laboring, and birthing women greater autonomy and control during this vital reproductive process.1 This trend has paralleled similar changes in the medical community, and a great deal of contemporary medical literature connects healthier outcomes for mothers and infants to greater patient autonomy and control over the use of medical interventions during labor and birth.2 Social scientists have tracked and documented these social, cultural, and medical trends.3
These social, cultural, and medical trends dovetail neatly with the legal doctrine of informed consent. They are concerned with how much and what kinds of information physicians should provide to their patients so that those patients can make intelligent choices that are appropriate to their circumstances and that will result in optimal healthy outcomes. In similar fashion, the legal doctrine of informed consent is concerned with how much and what kinds of information physicians must provide to their patients in order to avoid legal liability.4
The doctrine of informed consent, in essence, obliges physicians to share medical decision-making authority with their patients.5 At its core, the informed consent doctrine states that physicians have a duty to make adequate disclosures to patients regarding potential medical treatment, so that patients can make knowledgeable choices.6 This Note examines the intersection of the informed consent doctrine and the current trend toward greater patient autonomy and control during labor and childbirth. In particular, it focuses on a 1999 case, Schreiber v. Physicians Insurance Co. of Wisconsin.7
In Schreiber, the Supreme Court of Wisconsin applied the informed consent doctrine to the circumstances of laboring and birthing female patients.8 Specifically, Schreiber focuses on whether a physician has a duty to conduct a second informed consent discussion with a patient who, in the midst of labor, withdraws her prior consent to vaginal delivery and requests a cesarean section.9
This Note examines how Schreiber departs from previous opinions in which state courts have applied the informed consent doctrine to the circumstances of laboring and birthing women. Furthermore, it investigates the potential effects that Schreiber will have on the informed consent doctrine itself and on the administration of medical treatment to women during labor and birth. Finally, this Note explores how Schreiber both signals and reflects shifts in our cultural understanding of the role of doctors vis-a-vis their patients and of laboring and birthing women. Schreiber's legal effects are currently limited to the State of Wisconsin; this Note, however, argues that because Schreiber signals the law's acceptance of a fundamental cultural shift in our understandings of the doctor-patient relationship and of laboring and birthing women, it has a significance that stretches far beyond Wisconsin state lines.
First, Schreiber changes the process and timing of informed consent. The Schreiber court makes it clear that informed consent does not end with a physician's specific disclosure of information to a patient at a certain point in time. It suggests, to the contrary, that informed consent is a process rather than an endpoint, and it frames informed consent as a dialogue that is both ongoing and highly dependent on context. As the situation changes, medically or otherwise, the requirements and timing of informed consent may also change.
Second, the informed consent doctrine mandated by Schreiber evidences an expansion of the doctrine beyond its previous boundaries, as well as a movement toward a more patient-centered approach.10 As discussed further in Part II of this Note, the doctrine of informed consent was founded upon the notion that adult persons have a fundamental right to bodily selfdetermination-that is, to control what happens to their own bodies. …