Informed Consent

The doctrine of “informed consent” within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of “battery” (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure (e.g., Slater v. Baker and Stapleton).

Within the United States, the seminal case is generally accepted to be that of Schloendorff v. Society of New York Hospital, 211 NY 125 (1914). In that case, involving allegations of unauthorized surgery during an exploratory examination, Justice Cardozo’s oft-quoted opinion was that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” The court further described the offense as a “trespass” (upon the patient’s body and self).

However, requiring that the patient first consented was only half the task. The other half involved the patient’s receipt of sufficient information upon which to make a sound decision. Thus, the concept of “informed consent” was developed on the premise of two distinct components: a person’s inherent right to determine what happens to his or her body and a doctor’s inherent duty to provide a person with enough information so as to ensure that the patient’s ultimate decision is based on an appreciable knowledge of his/her condition, the available options for treatment, known risks, prognoses, etc. Importantly, this means that the patient does not have a duty to inquire about risks or options; the duty rests with the treating doctor.

Inside Informed Consent