Medical Law and Ethics

Sheila McLean, Sheila McLean

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351742009
• Edition: 1
• Topic: Law
• Subtopic: Medical Law
• Index: Law

This title was first published in 2002.The wide range of essays contained within this volume present contemporary thinking on the legal and ethical implications surrounding modern medical practice.

Part I

Negligence/Consent

[1]

The Yale Law Journal

Volume 95, Number 2, December 1985

From Informed Consent to Patient Choice: A New Protected Interest

Marjorie Maguire Shultz^†

INTRODUCTION

Judges and legal scholars have long asserted the importance of patient autonomy in medical decisionmaking. Yet autonomy has never been recognized as a legally protectable interest. It has been vindicated only as a byproduct of protection for two other interests—bodily security as protected by rules against unconsented contact, and bodily well-being as protected by rules governing professional competence. Neither bodily security nor bodily well-being, however, is an adequate surrogate; they do not coincide with autonomy. Nor is autonomy merely a formal issue. Decisionmaking by competent professionals does not provide an adequate substitute for patient choice. Injuries that arise from invasion of patients’ interest in medical choice are both substantial and distinct.

Part I of this Article explains the importance of patient autonomy and describes how existing doctrines protect that value. Part II examines gaps and flaws in that current scheme of protection. Part III analyzes clusters of cases in which greater vindication of patient autonomy has begun to emerge, and urges that these developments should be generalized. Part IV recommends the creation of a distinct and independently protected interest in patient autonomy.

I. STARTING POINTS

A. The Importance of Patient Autonomy

Individuality and autonomy have long been central values in Anglo-American society and law. In general, the more intense and personal the consequences of a choice and the less direct or significant the impact of that choice upon others, the more compelling the claim to autonomy in the making of a given decision.¹ Under this criterion, the case for respecting patient autonomy in decisions about health and bodily fate is very strong.²

The very fact that health care choices are extremely important, however, generates fear that individuals will make mistakes. The complex and esoteric nature of modern medicine necessitates advice from experts. Needed perspective and emotional support can be provided by family and friends. Given that medical choices affect the quality and even the length of life itself, individuals making such choices may well be urged to seek all the help, in terms of both love and knowledge, that they can find. Ultimately, however, the stake of both experts and loved ones is less intense than that of the patient whose well-being is directly affected.³ Patients’ preferences, therefore, ought generally to be controlling.

B. Implications for the Doctor-Patient Relationship

Although the principle of individual autonomy is widely endorsed in theory, its practical implications for the doctor-patient relationship are controversial. Individuals exercise their autonomy in medical decisionmaking by arranging for needed professional services. Presumably, these individuals remain the source of authority and can choose to delegate all or only some of their control to professionals.⁴ Yet, ironically, the most significant threat to patient autonomy comes from the very doctors whom patients hire. Because of their knowledge and traditional role, doctors often preempt patient authority.

Although scholars have proposed various models to describe or prescribe the distribution of power within the doctor-patient relationship,⁵ for a number of years one view dominated professional ideology and customary practice. Under that view, the patient was seen as making only one key decision, to place herself in a given doctor’s care, thereby delegating all subsequent authority to the doctor.⁶ Such a model assumed that the patient lacked the technical ability to make medical decisions, and that expertise justified the doctor’s making decisions on the patient’s behalf.

In the past several decades, however, new developments have strengthened the argument that patient autonomy should receive more than pro forma respect. Advancing medical technology has greatly expanded the options available to the patient. Increased knowledge has heightened awareness of how much remains unknown.⁷ Debate and conflict within the medical community are widespread and public.⁸ Differences in experts’ advice can often be resolved only on the basis of risk and value preferences. This medical uncertainty accentuates the need for professional advice, but it also strengthens the case for ultimate decision by the person whose life is directly involved.

Medical choice increasingly depends on factors that transcend professional training and knowledge. As medicine has become able to extend life, delay and redefine death, harvest and transplant organs, correct abnormality within the womb, enable artificial reproduction, and trace genetic defect, questions about values have come to the fore in medical decisionmaking. Health care choices involve profound questions that are not finally referable to professional expertise.⁹

In the face of value pluralism, factual indeterminacy, and increasing options, patient autonomy has become a central principle of both popular¹⁰ and philosophical¹¹ analysis of medical decisionmaking. Self-care and consumer movements have applied that principle, seeking to shift the balance away from professional dominance and toward individual knowledge and control.¹² Although medical traditions historically have downgraded patient autonomy,¹³ doctors, too, have begun to recognize and accept patient demands for more information and control.¹⁴

The law’s response to pressures for greater recognition of patient autonomy has been ambivalent.¹⁵ Existing rules repudiate the view that the mere hiring of a doctor transfers all authority from patient to doctor. Yet full vindication of patient autonomy interests would necessitate placing final authority regarding important decisions in the hands of any patient having the capacity and the desire to exercise it.¹⁶ I shall argue that precisely such a model for the allocation of authority is appropriate, but, as Part II will demonstrate, no such guarantee of patient autonomy is currently mandated by the law.

C. Existing Legal Protection of Patient Autonomy

Although the doctor-patient relationship ordinarily arises through contract,¹⁷ courts have deemed patients incapable of bargaining with doctors over the quality of medical services. Doctors’ performance has therefore been monitored under standardized tort rules that govern professional malpractice rather than under contractual criteria of individual expectation.¹⁸ Mainly as a derivative matter, the patient’s interest in self-determination has also been analyzed under tort theories.¹⁹

1. Battery

Patient autonomy was initially identified with and subsumed under an interest in physical security, protected by rules proscribing unconsented touch.²⁰ Medical care often involves touching, and may be considered battery if the touching is unconsented.²¹ By mandating patient consent to specific procedures, battery doctrine counters the implication that doctors acquire authority to make decisions simply by virtue of the contract for professional services. Moreover, professional competence is no defense to a medical battery action.²² Under battery analysis, the patient’s wishes take priority over even the fully competent recommendation of a doctor, unless an exception applies.²³ Apart from traditional defenses, the right to be secure against unconsented touching is close to absolute.²⁴ Application of battery doctrine to medical care thus establishes an uncompromising baseline of protection for patients’ self-determination.

Despite the capacity of battery doctrine to protect a degree of physical autonomy in patients’ relations with doctors, many aspects of the medical care relationship do not fit comfortably within the battery model. Doctors lack the antisocial motivation usually associated with intentional torts such as battery.²⁵ Further, unlike in the typical battery case, the patient usually has given a degree of consent to the doctor’s treatment, if only in the broad sense that the patient has sought medical care from the doctor.

Once courts began more thoroughly to examine the subtleties of the doctor-patient relationship, the difficulties inherent in applying battery analysis to problems of medical consent became impossible to ignore. On the one hand, a general consent to treatment given without awareness of risks, prognoses, and options was seen as an insufficient basis upon which to authorize treatment, even medically defensible treatment.²⁶ Yet to hold that such uninformed consent was invalid, thereby subjecting doctors to actions for battery, threatened to yield unacceptably harsh results. Given the absolute nature of battery, the narrowness of its defenses, and the breadth of its remedies, doctors could end up paying significant damages after providing faultless medical treatment, simply because some minor informational aspect of the consent process was questioned.²⁷

Discomfort with treating doctors under a doctrine aimed at antisocial conduct has prompted most jurisdictions to limit the battery action to those relatively unusual situations where a medical procedure has been carried out without any consent, rather than where the consent has merely been insufficiently informed.²⁸ The modern allegation of battery typically arises when consent to a particular procedure is given and a different or additional procedure is carried out.²⁹ The relative infrequency with which battery claims arise today should not, however, obscure the fact that battery doctrine retains a critical philosophical and practical function in protecting patient self-determination.

2. Informed Consent³⁰

Most litigation about patient autonomy now occurs over doctors’ nondisclosure of information, analyzed as an issue of professional negligence.³¹ Doctors’ responsibility for professional care of patients’ physical well-being gives rise to various specific duties, one of which is the provision of sufficient information to allow a patient’s decision to be intelligently informed. To recover for nondisclosure under the rules of professional malpractice, the patient must first show a violation of the duty to inform, defined in many states by the standard of expert professionals.³² Second, the nondisclosure must be shown to have caused a harm cognizable under negligence doctrine. Most states have adopted an objective standard of causation in medical informed consent cases.³³ This standard requires the patient to show that the undisclosed information would have induced not just this patient, but a reasonable patient, to withhold consent to the treatment in question.³⁴

3. The Justifying Prototype

The shift to negligence analysis made apparent analytic and practical sense.³⁵ Although some critics decried losses to patient autonomy that would result from emerging negligence rules,³⁶ current legal protection of patient autonomy has generally b...