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Negligence in securing informed consent and medical malpractice

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Reference notes

  1. Canterbury v. Spence, 464 F. 2d 772 (D.C. 1972),Cobbs v. Grant, 502 P. 2d 1 (Cal. 1972),Scott v. Bradford, 606 P. 2d 554 (Okl. 1979),Truman v. Thomas, 611 P. 2d 902 (Cal, 1980), to mention but a few. There have appeared some philosophical doubts as to whether the amount of information required for therapeutic medical intervention is sufficient for nontherapeutic medical intervention. See Jonas, Hans. “Philosophical Reflections on Experimenting with Human Subjects.”Intervention and Reflection, second edition, edited by Ronald Munson. Wadsworth Publishing, Cal. 1983, P. 269. For an extremely interesting counterargument see Jones, Gary E. “Conscription and Nonvoluntary Experimentation.”Ethics in Science and Medicine, Vol. 6, No. 3, 1979, P. 163.

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  2. Canterbury v. Spence.

  3. Natanson v. Kline, 350 P. 2d 1093 (Kan. 1960).

  4. Natanson v. Kline.

  5. Faden, Ruth and Beauchamp, Tom (in collaboration with King, Nancy)A History and Theory of Informed Consent. Oxford University Press, N.Y. 1986. See also Schwartz, Robert and Grubb, Andrew. “Why Britain Can't Afford Informed Consent.”Hastings Center Report. Vol. 15, No. 4, P. 19. (Aug. 1985) For an excellent presentation of trends in state statutes regarding informed consent see Andrews, Lori. “Informed Consent Statutes and the Decisionmaking Process.”The Journal of Legal Medicine. Vol. 5, No. 2, P. 163 (June 1984).

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  6. Natanson v. Kline.

  7. Helling v. Carey, 519, P. 2d 981 (Wash, 1974).

  8. InBlades v. Da Foe, 666 P. 2d 1126 (Col. 1983), the Colorado court altered the professional standard of disclosure in terms of the burden of proof. Rather than requiring the plaintiff to establish a breach of duty, the court required that the defendant show no breach after the plaintiff demonstrated that the defendant failed to inform him of a risk.

  9. Although it is referred to as the American rule, it obtains only in a minority of jurisdictions. This seeming oddity also obtains in other areas of law, e.g., in landlord-tenant property law. The so-called “English Rule” requiring that the landlord deliver both legal and actual possession to the tenant is accepted in the majority of jurisdictions. The American Rule requires that the landlord deliver only legal possession to the tenant.Adrian, v. Rabinowitz, 186 A. 2d 29 (N.J. 1936). Other so-called ‘American Rules’ however do enjoy application in a majority of jurisdictions. Consider the American, as opposed to the English, rule concerning cross examination.Eno v. Adair Country Mut. Ins. Ass'n. 294 N.W. 323 (lowa 1940). Federal Rules of Evidence Rule (611(b), 1984

  10. Canterbury v. Spence. It might prove interesting to compare the professional and patient standards with the Uniform Commercial Code's section 2–314, the implied warranty of merchantability, and strict liability in tort, Restatement, Second, of Torts (1965) section 402A comment i, respectively. Although contractual, the implied warranty of merchantability entails reference to professional or other commercial standards. ‘Merchantability’ is determined by usage in the trade, what other manufacturers do, or governmental standards. Section 402A places strict liability upon a manufacturer for a defect which is unreasonably dangerous. But a defect is considered unreasonably dangerous when it presents a danger beyond that which would be contemplated by theordinary consumer withordinary knowledge. Like the professional standard in medical practice, section 2–314 of the U.C.C. determines what the plaintiff receives by what others in the defendant's position are accustomed to delivering. Like the reasonable prudent patient standard, Restatement's section 402A determines what others in the defendant's position are obligated to do by reference to what the reasonable plaintiff might reasonably expect.

  11. Cobbs v. Grant (Cal.),Scott v. Bradford (Okl.).

  12. There has been some mixing of the two patient standards in a few jurisdictions. InHarbeson v. Parke Davis Inc., 645 F. 2d 517 (9th Cir. 1984), it was determined that a health care provider is obligated to disclose a risk that the disclosure standard does not require if the patientspecifically inquires about the risk.

  13. Canterbury v. Spence. The plaintiff must also prove that the medical intervention was causally responsible for the particular injury.

  14. MacPherson v. Ellis, 287 S.E. 2d 892 (N.C. 1982).

  15. Kinilsin v. Heupel. 305 N.W. 2d 589 (Minn. 1981).Harnish v. Children's Hospital, 439 N.W. 2d 204 (Mass., 1982).

  16. Fain v. Smith, 479 So. 2d 1150 (Ala. 1985).

  17. Cobbs v. Grant.

  18. Scott v. Bradford, 509 andFain v. Smith, 1161.

  19. Throughout the paper, the issues are presented as if the paradigm medical issue is the choice between treatment and non-treatment, or between taking a particular treatment and refusing it. While this is often true, it is not exclusive of other general models. There are various alternatives, at least one of which always includes the alternative of utilizing no specific treatment. For example, there might be two recognizably different treatments for a condition, treatment A and treatment B. The patient's alternatives might well be A, B, A and B, and neither A nor B. Obviously, if there are more than two potential treatments, the alternatives become more complex. In this connection see Perry, Clifton, “Ethical Issues in Choosing Treatment Plans,”The American Journal of Medicine, Vol. 74, No. 5, May 1983, p. 725.

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Perry, C. Negligence in securing informed consent and medical malpractice. J Med Hum 9, 111–120 (1988). https://doi.org/10.1007/BF01139236

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