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The Journal of Law, Medicine & Ethics

Volumn 16, Issue 3-4, 1988, Pages 210-218

A “Dignitray Tort” as a Bridge between the Idea of Informed Consent and the Law of Informed Consent

(1) Meisel, Alan a

a UNIVERSITY OF PITTSBURGH (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AUTONOMY;

ALTERNATIVES; ARTICLE; DOCTOR PATIENT RELATION; GROUP DYNAMICS; HUMAN; HUMAN RIGHTS; INFORMED CONSENT; INJURIES; INTERPERSONAL COMMUNICATION; LEGAL APPROACH; LEGAL ASPECT; LEGAL RIGHTS; MENTAL STRESS; PATIENT COMPLIANCE; PROFESSIONAL PATIENT RELATIONSHIP; THE SILENT WORLD OF DOCTOR AND PATIENT; UNITED STATES;

ALTERNATIVES; AUTONOMY; INJURIES; LEGAL APPROACH; LEGAL RIGHTS; PROFESSIONAL PATIENT RELATIONSHIP; THE SILENT WORLD OF DOCTOR AND PATIENT; UNITED STATES;

DISCLOSURE; HUMAN; INFORMED CONSENT; PATIENT COMPLIANCE; PERSONAL AUTONOMY; PERSONAL SPACE; PHYSICIAN-PATIENT RELATIONS; STRESS, PSYCHOLOGICAL; UNITED STATES;

EID: 0024081466 PISSN: 10731105 EISSN: 1748720X Source Type: Journal
DOI: 10.1111/j.1748-720X.1988.tb01948.x Document Type: Article

Times cited : (19)

References (61)

1
- 0017673445
- Informed Consent‐A Fairy Tale: Law's Vision
- (1997) University of Pittsburgh Law Review , vol.39 , pp. 137
- Katz¹

2
- 0003753918
- New York:, The Free Press
- (1984) The Silent World of Doctor and Patient
- Katz, J.¹

3
- 0041794513
- For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent and the Pleas Bargain
- (1975) The Yale Law Journal , vol.84 , pp. 683
- Goldstein¹

4
- 84985181265
- Id. at 703.

5
- 0018994540
- Informed Consent to Medical Treatment
- (1980) University of Pittsburgh Law Review , vol.41 , pp. 407
- Meisel¹ Kabrick²

6
- 84985242222
- Most Jurisdictions apply a so‐calld objective test o causation which requires a plaintiff‐patient to demonstrate that a reasonable person would not have consented to the treatment actually undergone had adequare disclosure been made, see, e.g., Canterbury v. Spence 464 F.ad 772(D.C.Cir.1972). Only a few instead apply a subjective test in which causation is based solely on the creditbility of the plaintiff‐patient's testimony. Sec, e.g., Scott v. Bradford,606 P.zd 554 (Okla. 1980). Permitting recovery for the non‐disclsure of alternatives is another example of a development tending to honor patient self‐determination.Se, e.g., Keogan v. Holy Family Hosp., 95 Wash.zd 306, 622P.2d 1246, 1254–55 1980.

7
- 84985242218
- Supra nore 2, at xiv‐xvi and passim.
- Katz¹

8
- 84985242217
- supra notee 3, at 691.
- Goldstein¹

9
- 84985242228
- Supra note 2, at 68.
- Katz¹

10
- 84985242234
- An unrevealed risk that should have been made known must materialize, for otherwise the omission, however upardonable, is legally without consequence. Canterbury v spenc, 464 F.2d 772, 790 (D.C.cir. 1972); accord Cornfeldt v Tongen, 262 N.W.2d 795,699 (1977). Although not men‐tioning explicitly the materialized risk requirement, there can be no doubt that the eartiest informed caseses proceed on the assumption that bodily harm is required.

11
- 84985256266
- See Salgo v. Leland Stanford, Jr. University, 154 Cal, App.2d 560,317 P.xd 170
- (1970)

12
- 84985256294
- An Analysis of ‘Inormed Consent’
- In so doing, they have not gone unaided by scholars. see, e.g, Plant, whose desiccated views of the law of torts have possibly done more to undermine the spirit of informed consent than those of any other single person.
- (1968) Ford ham Law Review. , vol.639

13
- 84985211759
- Restatement (Second) Torts S 18
- (1965)

14
- 84985256255
- The Law of Torst S g.2, at 268 (hereinarter harper and james).
- (1986)
- Harper, I.F.¹ James, F.² Grey, O.³

15
- 84985256254
- It may also explain, though only in part, why courts and legislatures have generally moved away from battery (and to negligence) as the appropriate theory for recovery for jack of informed consent. Other explanations, however, are that the starute of limitations in negligence is generally more favor‐able to palintiffs, but recovery i negligence is otherwise ar more difficult for plaintiffs because of such requirement as proof of the standard of care with the concomitant need in many jurisdictions for expert evidenc, more stringent proof of causation, and of course proof of bodily injury.

16
- 84985284613
- Lloyd v. Kull, z2g F.2d 168 (7th cir.) (§ 500).
- (1964)

17
- 84985288490
- Baily v. Belinfante, 135 Ga.App. 574, 218 S.E,2d 289 (reversal of defendant‐dentist's directed verdict).
- (1975)

18
- 84985281236
- Rolater v. Strain, 39 Okla.572,137 P.96 (§ 1000).
- (1919)

19
- 84985288483
- Mohr v. Williams, 95 Minn, 261,104 N.W.12 (1905)(§ 10,000Judgment for beneficial surgery on plaintif's left ear because patient had only consented to surgery on right car, though verdicr excressive); Throne v. Wandell, 176 Wis 97. 1986 N.W. 146 (1922)(§ 2000 award for “distress and humil‐ation and pain” which were “broken‐down” and “it was only a question of time” when they would have to be extracted anyway);c. Bonner v. Moran, 126 F.2d 121,122. (D.C.Cir. 1941)(“A surgical operation is a technicl battery, regardless of its results, and it excausabl only when there is express or implied consent”); but se Bennan v. Parsonner, 83 N.J.L 20, 83 Ad. 948 (1912)(Plaintiff's verdict and judgment for § 1000 for surgical repair of right groin rupture when plaintiff had consented to left repair).

20
- 84985288482
- Ironically, the one state that has refused to budge from the notion that inadequare disclosure is remediable as a bat‐tery rather than negligence has done so in a way that denis patients protection from nondisclosing doctors. In Pennsylvania, a doctor who fails to inform a patient about tht possible adverse consequences of an oral medication does not appear likely to be held liable for lack of informed consent because there has been no touching of the patient by the doctor. Boyer v. smith, 345 Pa. Super. 66,497 A.2d 646 (1985); Malloy v. Shanahan, 280 Pa. Super 440,421 A.2d 803 (1980).

21
- 84985210618
- See. e.g., Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72,441 P.2d 912 (1968)(negligent infliction of emotional distress); Stare Rubbish Collectors v. Siliznoff, 38 Cal.2d 330,240 P.2d 282 (1952)(intentional infliction of emotional dis‐tress).

22
- 84985256161
- Prosser and Keeton on Torts § 54, at 366, 5th ed.
- (1984)
- Keeton, W.¹ Dobbs, D.² Keeton, R.³ Owen, D.⁴

23
- 84985181230
- The gradual steps by whic recovery has been allowed for negligent infliction‐fist, to those who suffered a physical impact, no matter how slight; then to those who suffered no physical impact but feared for their own safety; then to those who neither suffered any physical impact nor feared for their own safety, but who (but for the grace of God) might have suffered a physical impact or feared for their own safety and thus were within the “zone of danger,” See Dillon v. Legg, 68 Cal.2d 728,69 Cal.Rptr. 72, 44 P.2d 912 (1968), ar testi‐mony to the fact that, as in most other things, where there is a will, there is a way. Other requirement for recovery in Dillon v. Legg were a; physical harm resulting from the emo‐tinonal harm and a close familial relationship between the vie‐tim and the plaintiff. These requirements have been slowly croded in California and other jurisdictions. A number of cases have dispensed with the requirement of physical harm resulting from the emotional harm. See, e.g. James v. Lieb, 375 N.W,2d 109. (Neb. 1985). The requirment of a close familial relationship has seemingly evolved into a requirement that there be a relationship based on “blood, marriage or a functioning family unit.” Kricentsov v. San Rafael Taxicabs, Inc, 186 Cal. App.3d 1445, 229 Cal. Rptr. 768,770 (1986); a fiance, Pieters v. B‐Bright Trucking, 669 f. Supp. 1463 (N.D. Ind. 1987); and “live‐in significant other” have been permit‐ted to recover, Ochoa v. Superior Court, 39 Cal.zd 159,216 cal. Rptr.661, 703 P.ad 1 (1985);but see Kately v Wilkinson, 148 Cal. App, 3d 576, 195 Cal. Rptt. 902 (1983) (denying recovery to mother and child witnessing dearth of child's best friend).

24
- 84985288478
- Prosser. supra note 22, § 54, at 363;id, at 60 n.34, Supp.
- (1988)

25
- 84985231954
- 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249
- (1958)

26
- 84985256188
- 167 CAl. Rptr. 831, 27 Cal.2d 916, 616 P.2d 813. This holding was presagd by Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), which did not involve a doctor‐patient relationship. See also Accounts Adjustment Bu‐reau v. Cooperman, 158 Cal. App.3d 844, 204 Cal. Rptr. 881 (1984)(recovery by parents for emotional distress due to neg‐ligent diagoniss of child);Rowe v. Bennett, 514 A.2d 802 (Me. 1986)(cause of action stated when plaintiff suffered emotional distress resulting form her psychotherapist becoming emotion‐ally involved with her “companion”); Martrell v. St. Charles Hosp., 137 Misc.2d 980, 523 N.Y.S.2d 342 (Sup. Ct. 1987)(negligent diagnosits of cancer).
- (1980)

27
- 84985197014
- Informed Consent in Catastrophic Dis‐case Treatment and Resarch
- (1974) University of Pennsylvania Law Review , vol.340 , pp. 403-423
- Capron¹

28
- 33847056284
- The Exceptions' to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking
- The so‐called therapeutic privilege permits physicians to withhold information otherwise obligated to be disclosed if the Information would be damaging to the patient. See, e.g., Cantebury v. Spence, 464 F.2d at 789; see generally Meisel
- (1979) Wisconsin Law Review , vol.413 , pp. 460-470

29
- 84985281252
- v. Holy Family Hosp., 95 Wash. 2d 306, 622 P.2d 1246, 1251 (1980)(“The facts which must be dis‐closed are all those facts the physician knows or should know which the patient needs in order to make the decision;” em‐phasis added); Gates V. Jensen, 92 Wash.2d 246, 595 P.2d 919, 923
- (1979)
- Keogan¹

30
- 84985256175
- Restatemnt (Second)Torts § 8A
- (1963)

31
- 84985210630
- Id. § 46(1).

32
- 84985297970
- Prosser, Supra note 22, § 117, at 851.

33
- 84985181239
- Restatemnt (Second)Torts §§ 652A‐652E
- (1965)

34
- 0000320829
- The Right to Privacy.”
- (1890) Harvard Law Review , vol.4 , pp. 193
- Warren¹ Brandeis²

35
- 84985288493
- Supra note 14, § 9.6 at 636.
- Harper, I.¹ James²

36
- 84985210636
- Prosser, supra not 22, § 117, at 851‐54;see also Restatement (Second) Torts § 652C
- (1963)

37
- 84985182464
- supra note 14, § 9.6 at 631.
- Harper, I.¹ James²

38
- 84985182465
- Id. § 9.6, at 633‐34.

39
- 84985196932
- Id.

40
- 84985197390
- Id. § 9.6, at 644.

41
- 84985231314
- Id. § 9.6, at 644–45.

42
- 84985284696
- See Boyer v. Smith, 345 Pa. Super. 66, 497 A.2d 646 ; Malloy v. Shanahan, 280 Pa. Super 440, 421 A.2d 803 (1980).
- (1985)

43
- 0017628649
- The Expansin of Liability for Medical Ac‐cident; From Negligence to strict Liability by Way of In‐formed Consent, “
- 31
- (1977) Nebraska Law Review , vol.56 , pp. 77-82
- Meisel¹

44
- 84985197358
- supra note 14, § 9.6, at 637.
- Harper, I.¹ James²

45
- 84985266353
- supra note 1, passi.
- Katz¹

46
- 84985196925
- See Cobbs v. Grant, 8 Cal.3d 229, 104 Cal. Rptr. 505, 502 P.2d 1, 10 ; Natanson v. Kline, 186 Kan. 393.350 P.2d 1093, 1106 (1960).
- (1972)

47
- 84985284599
- One Case involving such a failure is Bang v. Charles T. Miller Hosp. 251 Minn. 427, 88 N.W. 2d 186. Al‐thought litigated after the “discovery” of informed consent, there is no reason why it could not have been brought under the aegis of informed consent, Professor Plant's argument to the contrary not with standing. See supra not 12.
- (1958)

48
- 84985231947
- See, e.g. McGrady v. Wright, 151 Ariz. 534, 729 P.2d 338 (Ct.App.); Logan v. Greenwich Hosp. Assn. 465 A.2d 1014 (1977); Smith v. Karen S. Reisig. M.D., Inc. 686 P.2d 285, 289 (Okla, 1984); Keogan v. Holy Family Hosp., 95 Wash, 2d 306, 622 P.2d 1246 (1980); ct. Lipscomb v. Memo‐tial Hosp., 733 F.2d 332 (4th Cir.1984)(Md. law)(Plaintiff's judgment based also failed to disclose alternatives risk, but de‐fendant‐doctor also failed to disclose alternatives such as ant‐acids and other “Conservative measure short of surgery” in treatment of hiatal hernia).
- (1986)

49
- 84985210063
- Se supra note 10.

50
- 84985231970
- Se discussion infra of informed refusal.

51
- 84985210084
- 465 A.2d 294, Conn.
- (1983)

52
- 84985182452
- 686 P.2d 285, 289, Okla
- (1984)

53
- 84985210075
- A Small minority of jurisdicitons employ a more pa‐tint‐oriented {for “subjective”} test of causation under which the plaintiff is permirred to show that be would have declined treatment had the undisclosed risk been disclosed, See Scott v. Bradford, 606 P.2d 554, Okla
- (1980)

54
- 84985281215
- Smith v. Karen s. Reising, M.D., Inc 686 P.2d at 289.

55
- 84985266359
- Id. at 288.

56
- 84985285018
- supra note 1, at 138; Katz, supra note 2, at 60–62 and pasim.
- Katz¹

57
- 84985239252
- Whether or not they have the right to decline treat‐ment when the refusal would lead to death is a matter of much dispute. it is virtually certain that there is a right to decline treatment when it would merely prolong the process of dying, but not necessarily when it is life‐saving. Compare John f. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670, with I re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). Nonetheless, it is increasingly clear that, at least pre‐sumptively, such a right exists. See, e.g., In re Bth Israel Med‐ical Center, 136 Misc.2d 931, 519 N.Y.S2d 511, 513 {Sup. Ct 1987}.{“There is no question that a competent adult has the right to refuse treatment and that this right, in the absence of special circumstancs. Prevails over the State's Parens pa‐triate interests{This is so even if the treatment rejected or terminated will result in death.”}.
- (1971)

58
- 84985205611
- To date, there are a very small number of so‐called informed refusal cases. See Moore v. Preventive Medicine Medical Group, Inc. 178 Cal. App. 3d 728, 223 Cal. Rptr. 859 ; Truman V. Thomas, 27 Cal. 3d 285, 165 Cal. Rptr. 308, 611 P.2d 902 (1980); Crisher v. Spak, 471 N.Y.S.2d 741 (Sup. Ct. 1983); cf. In re Farrell, 108 N.J. 335, 529 A.2d 404, 410 (1987)(Right to give an informed refusal is the logical correlative of the right to give informed consent).
- (1986)

59
- 84985205639
- Truman v. Thomas, 27 Cal. 3d 285, 165 Cal. Rptr. 308, 611 P.2d 902
- (1980)

60
- 84985180610
- suptra note 2, at 138.
- Katz¹

61
- 84928222954
- Rethinking Intangible Injuries: A Focus on Remedy
- (1985) California Law Review , vol.73 , pp. 772
- Ingber¹

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