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1-1-1977

Informed Consent - A Fairy Tale? - Law's Vision Jay Katz

Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers Part of the Law Commons Recommended Citation Informed Consent - A Fairy Tale? - Law's Vision, 39 University of Pittsburgh Law Review 137 (1977)

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VOLUME 39

WINTER 1977

NUMBER 2

INFORMED CONSENT-A FAIRY TALE? LAW'S VISION

Jay Katz* This article is a substantially revised and expanded version of the first Isaac Ray Lecture delivered by Dr. Katz at the University of Pittsburgh School of Law on February 16, 1977. The 1975 Isaac Ray Award was presented to Dr. Katz by the American Psychiatric Association for his outstanding contributions to forensic psychiatry. A.similarly expanded version of Dr. Katz's second Isaac Ray Lecture, "Medicine's Vision," will appear in a subsequent issue.-The Editors.

1.

INTRODUCTION

Fairy tales are so appealing because ultimately they reduce complex human encounters to enchanting simplicity. In listening to them we suspend judgment and believe that once upon a time it was, and maybe even today it is, possible to utter magic words or perform magic deeds which transform frogs into princes or punish greedy fishermen's wives. The phrase "informed consent" evokes the same magic expectations. Its protagonists often convey that once kissed by the doctrine, frog-patients will become autonomous princes. Its antagonists warn that all the gold of good medical care which physicians now so magnanimously bestow on patients will turn to worthless metal if the curse of informed consent were to remain with us. In listening to people talk about informed consent, I have been • Professor (Adjunct) of Law and Psychiatry, Yale Law School. The author wishes to express his appreciation for the thoughtful research and editorial assistance which Robert Carter, a graduate of the Yale Law School, provided throughout the revision of the manuscript. The author is indebted to his colleagues Bruce Ackerman, Ralph Brown, Robert Burt, Owen Fiss, Abraham Goldstein and Arthur Leff for their critical comments. The financial support of The Kayden Foundation is also gratefully acknowledged.

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struck again and again by their childlike conviction that the phrase has meaning, that it does not require painstaking definition before one can even begin to discuss it. This propensity to suspend realitytesting recalls dreams of our own when everything, however impenetrable or absurd, appeared so remarkably sensible, at least until we are fully awake. Dreams, fairy tales, even legal phrases and medical terminology have much in common; they seduce us to surrender our adult critical judgment. We remain all too prone to such surrenders so that, as fairy tales again instruct us, we can go to great lengths in denying that the emperor has no clothes. It is possible that Justice Bray of the California District Court of Appeals after reflecting, before going to sleep, on the opinion he would write the next morning in Salgo v. Leland Stanford, Jr., University Board of Trustees, 1 first dreamt of the phrase "informed consent" and subsequently forgot its origin. There is a dream-like quality to the informed consent part of the opinion. Consider the words: "in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent."2 Only in dreams or fairy tales can "discretion" to withhold crucial information so easily and magically be reconciled with "full disclosure." Conflicting latent wishes and fears found simultaneous expression in this novel legal doctrine. Justice Bray wished at one and the same time to give decisional authority to patients and to maintain the authority of the physician; he wished to acknowledge, trustingly and mistrustingly, both the self-restoring power of autonomous adult choice and the recuperative power of childlike surrender. Out of this unresolved conflict a glittering phrase emerged whose flashy brilliance should have alerted Justice Bray that what may have been a creative dream vision now required careful waking reflection. Mter all, there may be much wisdom in each of these conflicting wishes, but to reconcile them in waking life, so that one wish will not dominate all others, is a difficult task which only dreams solve easily. The phrase at best gave symbolic expression to the aspiration of uniting professionals and their patients in the common pursuit of mutually acceptable medical objectives. 3 But symbols, unless 1. 154 Cal. App. 2d 560, 317 P. 2d 170 (Dist. Ct. of App. 1957). 2. Id. at 578, 317 P. 2d at 181 (emphasis supplied). Justice Bray did not define the

ambit of discretion. Since physicians have traditionally exercised broad discretion not to disclose, it would have been important to circumscribe discretion if it was meant to become the exception rather than the rule. See text accompanying notes 27-32 infra. 3. Cf. P. RAMSEY, THE PATIENT AS PERSON-EXPLORATIONS IN MEDICAL ETHICS 5-6 (1970):

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nourished with meaning, have a way of not only guiding but misguiding, of lulling us to sleep by the promise that tomorrow, and ever after, we shall live happily. Life, even in fairy tales, is never that easy. The' common law's vision of informed consent is confusing and confused. Its frequently articulated underlying purpose-to promote patients' decisional authority over their medical fate-has been severely compromised from the beginning. The wish that patients can or should be allowed to make their own decisions, based on the fullest disclosure possible, runs through most of the opinions. But once the wish has been given its separate due, the rest of the opinion ignores that dream and instead defers to those realities of legal, medical, and human life which are opposed to fostering patients' decision-making. Thus the doctrine of informed consent remains a symbol which despite widespread currency has had little impact on patients' decision-making, either in legal theory or medical practice. Anglo-American law is caught up in a conflict between its vision of human beings as autonomous persons and its deference to paternalism, another powerful vision of man's interaction with man. The conflict created by uncertainties about the extent to which individual and societal well-being is better served by encouraging patients' self-determination or supporting physicians' paternalism is the central problem of informed consent. This fundamental conflict, reflecting a thoroughgoing ambivalence about human beings' capacities for taking care of themselves and need for care-taking, has shaped judicial pronouncements on informed consent more decisively than is commonly appreciated. The assertion of a "need" for physicians' discretion-for a professional expert's rather than a patient's judgment as to what constitutes well-being-reveals this ambivalence. Other oft-invoked impediments to fostering patients' self-determination, such as patients' medical ignorance, doctors' precious time, the threat of increased litigation, or the difficulty of proving what actually occurred in the dialogue between physician and patient are, substantially, rationalizations which obscure the basic conflict over whose judgment is to be respected. Man's capacity to become joint adventurers in a common cause makes the consensual relation possible; man's propensity to over-reach his joint adventurer even in a good cause makes consent necessary. . . . In therapy and in diagnostic or therapeutic investigations, the common cause is some benefit to the patient himself; but this is still a joint venture in which patient and physician can say and ideally should both say, "I cure."

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This ambivalence also reflects conflicting legal views about the psychological nature of human beings. In jurisprudential theory, man is said to be autonomous, self-determining and responsible for his actions. Yet law-makers do not place complete faith in such theoretical constructs once man comes into living contact with law. The never-ending debates over criminal responsibility and civil commitment are telling examples of this conflict in other areas of law. It extends, however, from encounters with persons tainted by attributes of "mental illness" to interactions with "normal" persons where, as in most informed consent disputes, no considerations of mental abnormality enter. Medical law in the United States is a clear case of institutionalized paternalism. In the last fifty years allopathic physicians have been awarded virtually a complete monopoly over the licensure and practice of the healing arts. Similarly, for the "protection" of citizens, the most rigid drug laws in the world have been promulgated, sequestering most of the pharmacopaeia under the control of experts. When judges began to consider the issue of patients' autonomy in medical decision-making, it took place in a climate where the question of self-determination had been neglected by law for centuries. Lawmakers had reduced patients' personal freedom to the right of vetoing unwanted procedures and even this veto power is not always respected. 4 As will be developed below, the courts' dicta on selfdetermination as the fundamental principle underlying the informed consent doctrine are misleading if taken to imply a broad duty of physicians to disclose pertinent medical information or to invite active patients' participation in medical decision-making. Such dicta give the unwary reader of informed consent opinions a false sense that they shaped the doctrine's development, when instead other considerations, including strong doubts about the dicta themselves, were moreimportant. There may, however, have been wisdom in judges' reluctance to give full support to patients' selfdetermination, once having made a symbolic bow to its supposed supremacy. Disclosure and consent may well be deleterious to a patient if, for example, as a consequence of medicine's ubiquitous uncertainties about risks and benefits, physicians' and patients' unexamined faith in the curative power of medical interventions 4. See, e.g., Application of President and Directors of Georgetown College, 331 F. 2d 1000, rehearing denied, 331 F.2d 1010 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964); Petition of Nemser, 51 Misc. 2d 616, 273 N.Y.S. 2d 624 (Sup. Ct. 1966).

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contributes significantly to therapeutic success. Even partial awareness of such uncertainties, which an informed consent doctrine based on thoroughgoing self-determination would bring to consciousness, thus could prove detrimental to recovery. Judges, having been patients themselves, may intuitively have appreciated this crucial, though unexplored, issue and decided to avoid it. They focused instead on il1..dividual physicians' "transgressions" and ignored the fact that such "transgressions" are guided by allembracing Hippocratic convictions about the "anti-therapeutic" consequences of disclosure and consent. These convictions have gained unquestioned acceptance by the way medicine has been taught to students since ancient times, though it is not at all clear that they can pass the test of careful examination. One thing is clear, however-traditional medical practices, indeed all professional practices, would be radically altered if courts were to enforce patients' rights to disclosure and consent. Underlying this problem, however, rests another: Who decides what, if any, medical intervention should be undertaken? Justice Bray gave an equivocal response. He said that disclosure was a matter for physicians' "discretion ... consistent with the full disclosure of facts necessary to an informed consent."5 Subsequent judges stated more forcefully the patient's right to decide, but their opinions, read as a whole, are much more qualified. Courts have not acknowledged their failure to place effective authority in patients' hands. Though judges have felt morally bound to announce that patients ought to be enabled to guide their medical fate, they considered this position unsatisfactory in application and subjected it to extensive modifications. That such modifications significantly tampered with the basic posit of patients' self-determination and that altogether judicial commitment to individual decision-making was not very firm, were never clearly admitted. Judicial concern about patients' capacity to make medical decisions and about the detrimental impact of disclosure on patients proved to be more influential than self-determination in shaping the informed consent doctrine, even though the validity of these concerns rests more on conjecture than fact. Physicians, while in recent decades increasingly confused as to what law expected them to do, have continued to exercise their traditional discretion in deciding what to and what not to disclose 5. Salgo v. Leland Stanford, Jr., University Board of Trustees, 154 Cal. App. 2d 560, 578,317 P. 2d 170, 181 (Dist. Ct. of App. 1957).

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to patients. They have done so out of a felt necessity that unites most professionals in society. 8 At the same time the fear of malpractice suits has led to an increased flow of words between physicians and patients. But this has not altered greatly the nature of the "informed consent:' dialogue, because the information was not conveyed in the spirit of extending greater freedom of choice to patients. To accomplish that objective would have required a significant modification of the physician's deeply held convictions that he must make the ultimate decision about his patient's medical fate and this has not happened. Instead, the "dialogue" between them continues to be subtly and not so subtly punctuated with crucial distortions, not so much guided by enlightenment in order to facilitate patients' participation in decision-making, but by a conviction that doctors' orders should be followed. The answer to the question, who decides what medical intervention should be undertaken, is neither simple nor self-evident. All human beings, especially those who are ill, struggle with impulses both to maintain and to surrender their autonomy, often without being conscio~s that such contradictory wishes exist. And judges and physicians bring to this dilemma profound doubts as to whether people are better served by lightening the burden of "the terrible gift [of freedom]"7 or whether such manipulation of human beings, even though "for their own good," is to "deny their human essence, to treat them as objects without wills of their own, and therefore to degrade them."8 Yet the doctrine of informed consent, if it is to enhance patients' participation in decision-making, must confront the question: Who decides? The temptation in case and commentary has been all too great to assign the responsibility for decision to either the physician or the patient, or to leave the answer vague. The answer will not turn out to be an "either-or" one, but one that is more complex. Mutuality of decision-making will remain necessary. This is a delicate problem which requires extensive exploration, for in interactions between parties of unequal status the danger is particularly great that control by reciprocity will give way to control by 6. See, e.g., H.S. Becker, "The Nature of a Profession," in The Sixty-First Yearbook of the National Society for the Study of Education 27 (N.B. Henry, ed., 1962); T. PARSONS, THE SOCIAL SYSTEM (1951); E.C. Hughes, "Professions," 92 Daedalus 655 (1963); D.E. RoSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974). 7. F. DOSTOYEVSKY, THE BROTHERS KARAMAZOV 301 (1880, Penguin ed., D. Magarshack, trans., 1958). 8. I. BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 138 (1969).

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duress. 9 However, before the respective duties and obligations of patients and physicians in the informed consent process can be delineated, we must understand more about law's position, medicine's problems, and the psychology of the human beings caught up in this process. In a series of articles, of which this is the first, I shall attempt to place the informed consent problem in perspective. I shall demonstrate that physicians have been given too sweeping authority to decide unilaterally what is in the patient's "best interests." But I will not suggest that the coin should merely be reversed and that patients should now become sole decision-makers. The psychodynamics of the consent process defies such a simple-minded solution. To work toward a more meaningful resolution requires careful and gradual exposition, beginning with an analysis of what the doctrine of informed consent does, and does not, represent in law. II.

THE LAW OF CONSENT

Since Salgo, the requirement of "consent" in malpractice law has purportedly given way to "informed consent."lO The new legal hybrid's two components-disclosure and consent-have been given unequal treatment in case law. While the disclosure component has received some construction, the consent component was left untouched; in fact the doctrine of informed consent straddles two bodies of law-"informed," denoting recent changes in negligence law, and "consent," representing the law of medical battery, unchanged for decades. Before commenting on some of the implications of this confused development of what has turned out to be negligence law, a brief historical review of the law of consent is necessary. Consent to medical or surgical interventions is an ancient legal 9. For an intriguing discussion of the same problem in parent-child interactions, see E.H. ERIKSON, "Growth and Crises of the 'Healthy Personality,''' in PERsONAUTY IN NATURE AND CULTURE 185 (C. Kluckhohn et al., eds., 1955). And analogous problems of overreaching and disclosure arise in all fiduciary relationships. See, e.g., Mills v. Electric AutoLite, 396 U.S. 375 (1969). The language of fiduciary relationships has often appeared in informed consent cases, but it has framed rather than specifically directed the development of the law of informed consent. See, e.g., Canterbury v. Spence, 464 F.2d 772,782 (D.C. Cir. 1972). Indeed, in the doctor-patient relationship, there may be tension between openness of communication and the maintenance of the faith crucial to the healing process. The essence of the fiduciary duty, to act in the best interests of the beneficiary, here the patient, may often persuade physicians to curtail disclosure. See note 25 infra. The obligations of "faith" in the medical area are thus complex and unique. 10. See, e.g., Cobbs v. Grant, 104 Cal. Rptr. 505, 513, 502 P. 2d 1, 9 (1972); C. FRIED, MEDICAL EXPERIMENTATION: PERsONAL INTEGRITY AND SOCIAL Poucy 19 (1974).

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requirement. lI Under the legal rubric of battery, courts have jealously guarded a patient's right to know and to agree to what a physician or surgeon intends to do to him. An intentional touching to which a patient has given no consent is considered a battery.12 To defeat a battery claim, however, the information which must be disclosed is quite narrow in scope. A physician only has to inform the patient of the nature of the procedure, i. e., what the doctor proposes to do to him. Failure to advise the patient of this minimal basic information admits of no excuse, except when an emergency requires intervention without delay. 13 The two interests of personality which the tort of battery seeks to protect are "the interest in the physical integrity of the body, that it be free from harmful contacts" and "the purely dignitary interest in the body, that it be free from offensive contact."14 Battery, which evokes frightening visions of physical violence, is an uncompromising remedy, allowing few defenses. 15 Only a very restricted question is asked: Did the patient know and agree to what was going to be 11. See Slater v. Baker, 95 Eng. Rep. 860, 862 (K.B. 1767), where in the course of holding that trespass on the case as well as trespass would lie for an unauthorized surgical procedure, the court stated, "indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put himself in such a situation as to enable him to undergo the operation ...." Initially, voluntary submission constituted consent. See Ames, The History of Assumpsit, 2 HARv. L. REv. 1,3 (1888): The original notion of a tort to one's person or property was an injury caused by an act of a stranger, in which the plaintiff did not in any way participate. A battery, an asportation of a chattel, an entry upon land, were the typical torts. If, on the other hand, one saw fit to authorize another to come into contact with his person or property, and damage ensued, there was, without more, no tort. The person injured took the risk of all injurious consequences, unless the other expressly assumed the risk himself, or unless the peculiar nature of one's calling, as in the case of a smith (or a physician or surgeon), imposed a customary duty to act with reasonable skill. See also 2 F. POLLACK and F. W. MAITLAND, THE HISTORY OF ENGLISH LAw BEFORE THE TIME OF EDWARD I 526-27 (2d ed.1968); FtFOOT, HISTORY AND SOURCES OF THE COMMON LAW 66 (1949). 12. W. PROSSER, HANDBOOK OF THE LAw OF TORTS, § 18, at 102-06 (4th ed. 1971). 13. See, e.g., Schloendorff v. The Society of the New York Hosp., 211 N.Y. 125, 130, 105 N.E. 92, 93 (1914); McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 MINN. L. REv. 381 (1957). If the patient is a minor or incompetent, the authority to consent is transferred to the patient's legal guardian or closest available relative. See, e.g., Cobbs v. Grant, 104 Cal. Rptr. 505, 514, 502 P. 2d 1, 10 (1972). 14. 1 F. HARPER and F. JAMES, THE LAw OF TORTS, § 3.2, at 213 (1956). 15. Plante, An Analysis of "Informed Consent," 36 FORDHAM L. REV. 639, 656 (1968): A physician sued in a battery case has relatively little "elbow room" in which to establish a defense. A physician sued for medical negligence in failing to disclose hazards has many more possibilities on which to base a defense under the circumstances that existed. Herein lies one of the significant practical reasons why the distinctions (between battery and negligence) ... should be kept intact. See text accompanying notes 90-95 infra.

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done to him ?16 If the answer is no, law does not require the patient to be physically damaged by the intervention. His health may be significantly improved, and yet the doctor is liable. Nor is proof required that the patient's probable conduct in submitting to the touching would have been different, had the doctor fulfilled his duty to disclose the nature of the procedure. In some of the cases, the plaintiff, knowing what was intended, would very TIkelyhave agreed. 17 Thus, a successful battery action may provide the plaintiff with free care, improved health, and financial compensation. The arguable inequity of this result is overriden by the great fear that something will be done to a person which he did not invite and had no opportunity to veto, however medically appropriate it may be. This fear has inspired judges to declaim broadly man's right to determine what shall be done with his body: Under a free government at least, the free citizen's first and greatest right, which underlies all others-the right to himself-is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent-to violate without permission the bodily integrity of his'patient ... and [operate] on him without his consent or knowledge. IS

Or, in the most frequently quoted case, Justice Cardozo stated: In the case at hand, the wrong complained of is not merely negligence. It is trespass. 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. 19

The courts' dicta have been quoted frequently in case and commentary in support of the proposition that the judges had established a patient's right to thoroughgoing self-decisionmaking. 20 A 16. Id. at 657-58. 17. See, e.g., Mohr v. Williams, 104 N.W. 12 (Minn. 1905). 18. Pratt v. Davis, 118lll. App. 161, 166 (1905). 19. Schloendorff v. The Society of the New York Hosp., 211 N.Y. 125, 129·30, 105 N.E. 92,93 (1914). The doctrine of charitable immunity, at issue in Schloendorff, did not apply to trespass claims, whereas hospitals were immune to negligence claims. See also Wall v. Brim, 138 F.2d 478, 481 (5th Cir. 1943), consent issue tried on remand, verdict for plaintiff aff'd, 145 F.2d 492 (5th Cir. 1944), cert. denied 324 U.S. 857 (1945). 20. See, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972); Shack v. Holland, 389 N.Y. Supp. 2d 988,991 (1976); 1 D. LoUISELL, H. WILLIAMS and J. KAuSCH, MEDICAL MALPRACTICE Para. 8.09, at 221 (1973); Capron, Informed Consent in Catastrophic Disease Research and Treatment, 123 U. PA. L. REv. 340, 346-47 (1974); Note, Restructuring Informed Consent: Legal Therapy for the Doctor-Patient Relationship, 79 YALE L.J. 1533, 1555 (1970).

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careful reading of the cases, however, does not bear out this contention. These declamations addressed only the absolute duty of doctors to advise their patients of what is going to be done to them and to obtain their consent. It is this basic disclosure duty which courts underscored with their broad statements on self-determination. Their inquiry, for purposes of analysis of this quite limited, but rigorously enforced, duty did not invite or require a sophisticated examination of the consent -process; for consent sufficient to obviate a claim of battery, the doctor only need relate in lay language what he intends to do to his patient. 21 The recent pronouncements on "informed consent" have not altered this simple requirement for valid consent. The label "informed consent" is misleading, since violation of the new duty to disclose risks and alternative treatments does not invalidate the patients' consent to the procedure in the great majority of jurisdictions. 22 Rather the law of "informed consent" denotes a cause of action based on negligent failure to warn, i.e., failure to disclose pertinent medical information. While concern over patients' right to 21. See Plante, An Analysis of "Informed Consent," 36 FORDHAM L. REV. 639, 657-58 (1968); Com v. French, 71 Nev. 280, 289 P. 2d 173 (1955), modified by NEV. REV. STAT. § 41 A. 110 (1975) (Consent conclusive if physician explains procedures, risks and alternatives in general terms, without enumerating specific risks); See also Slater v. Baker, 95 Eng. Rep. 860,862 (K.B. 1767); Cobbs v. Grant, 104 Cal. Rptr. 505, 511-12, 502 P. 2d I, 7-8 (1972). 22. Violation of the new duty to warn does not subject the defendant to liability for battery. See text accompanying notes 88-97 infra. Possible exceptions to this general rule may exist in a few jurisdictions. In Pennsylvania, the Health Care Services Malpractice Act of Oct. 15, 1975 provides: "Informed consent" means for the purposes of this act and of any proceedings arising under the provisions of this act, the consent of a patient to the performance of health care services by a physician or podiatrist: Provided, that prior to the consent having been given, the physician or podiatrist has informed the patient of the nature of the proposed procedure or treatment and of those risks and alternatives to treatment or diagnosis that a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis.... PA. STAT. ANN. tit. 40, § 1301-103 (1975). See also Cooper v. Roberts, 220 Pa. Super. Ct. 260, 286 A. 2d 647 (1971), construing Gray v. Grunnagle, 423 Pa. 144, 223 A. 2d 663 (1966). In Florida, the law is chaotic; see FLA. STAT. ANN. § 768.46 (1976), and a discussion of its incomprehensibility, Berger, The Medical Malpractice Crisis: How One State Reacted, 11 FORUM 64,71 n. 20 (1975). Compare Russell v. Harwick, 166 So. 2d 904 (Fla. Dist. Ct. of App. 1964) and Miriam Mascheck, Inc. v. Mausner, 244 So. 2d 859 (Fla. Dist. Ct. of App. 1972) with Ditlow v. Kaplan, 181 So. 2d 226 (Fla. Dist. Ct. of App. 1965). Generally, however, failure to disclose has been treated under negligence law, and the requirements for a valid consent have not been expanded. See text accompanying notes 40, 49, 95 infra. In Georgia, the doctor's duty to disclose has been greatly curtailed. See Parr v. Palmyra Park Hospital, Inc., 228 S.E. 2d 596 (Ga. Ct. of App. 1976), interpreting GA. CODE § 88-2906 (1971). And recent statutes have reduced the duty to disclose to specific major risks, and have prescribed binding written consent forms. See OHIO REv. CODE ANN. § 2317.54 (Page 1976); see also IOWA CODE ANN. § 147.137 (West 1976); LA. REV. STAT. ANN. § 40:1299.40 (West 1976).

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self-determination has led judges to entertain the need for greater disclosure of medical information, it did not prompt them to expand the requisites for valid consent. It is important to appreciate this lack of development, for it raises the question: Can patients' right to self-decisionmaking be safeguarded by merely modifying requirements for disclosure without at the same time expanding the requirement for valid consent? Or put another way, since there is a reciprocal relationship between disclosure and consent, how extensively and substantively must the informational needs of patients be satisfied to insure greater self-decisionmaking if it is to be accomplished within the matrix of the traditional consent requirement? In theory there is perhaps nothing wrong with leaving consent ·as it has always been, since self-determination could be protected by amplifying the requirements for mandatory disclosure. In practice, however, judges' sole focus on disclosure, to the exclusion of consent, tends to perpetuate physicians' disengaged monologues and to discourage a meaningful dialogue between doctors and patients. While it is difficult to compel change in the discourse between human beings where so much depends on the spirit in which it is carried on, a focus on the consent process would highlight the need for being mindful not only of physicians' conduct, standing alone, but of their conduct in relation to their patient. Questions would then arise as to whether physicians have explored what a patient wishes to know by inviting him to ask further questions about treatment options and by ascertaining whether a patient's informational needs have been met to his satisfaction. 23 Consent is more responsive to inquiries into the 'care taken for facilitating understanding, while disclosure is less so; for the temptation is great to emphasize what is said rather than how it is communicated. Not only was nothing done about consent but, as we shall see, judges have been exceedingly reluctant even to require significant disclosure. ill.

THE LEGAL LIFE OF "INFORMED CONSENT"

In the last two decades, judges have begun to ask whether patients are entitled not only to know what the doctor proposes to do, but also to decide whether an intervention is acceptable in light of its risks and benefits and the available alternatives, including no treatment. This new awareness of patients' informational needs was influenced by the simultaneous growth of product liability and con23. See text accompanying notes 69-71 infra.

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sumer law generally. The law of fraud and deceit has always protected patients from doctors' flagrant misrepresentations;24 and in theory patients have always been entitled to ask whatever questions they pleased. What the doctrine of informed consent sought to add is the proposition that physicians are under an affirmative duty to offer to acquaint patients with the important risks and plausible alternatives to the proposed procedure. Proceeding from the law of battery, the courts reasoned that significant protection of patients' right to decide their medical fate required not merely perfunctory assent but a truly "informed consent," based on an adequate understanding of the medical and surgical options available to them. Yet judges were hesitant to intrude on medical practices. Their impulse to foster individual self-determination collided with their equally strong desire to maintain the authority of the professions, not solely for the sake of professionals, but also in the "best interests" of patients and clients. Law has always respected the arcane expertise of physicians and has never held them liable if they practiced "good medicine." The law of consent in battery represented no aberration from this principle, since most physicians agree that patients at least deserve to know the nature of the proposed procedure. However, the new duty of disclosure which law, in the name of self-determination, threatened to impose upon physicians was something quite different. Significant disclosure is not standard practice for the vast majority of physicians. Indeed, disclosure and consent, except in the most rudimentary fashion, are obligations alien to medical practice. Doctors believe that patients are neither emotionally nor intellectually equipped to playa significant role in decisions affecting their medical fate, that they must be guided past childish fears into "rational" therapy, and that disclosures ofuncertainty, gloomy prognosis and dire risks often seriously undermine cure. 25 Judges have been insufficiently aware of the deeply ingrained Hippocratic tradition against disclosure and, instead, seem to have assumed that an individual physician's lack of disclosure was aberrant with respect to standard medical practice, and hence "negligent," in the sense of "forgetful" or "inadvertant" conduct. 26 24. 1 D. LOUISELL, H. WILUAMS and J. KAuSCH, MEDICAL MALPRA