Informed consent: Physician inexperience is a material risk for patients

Journal of Law, Medicine and Ethics

Volumn 35, Issue 3, 2007, Pages 478-485

  Veerapen, Richard J ^a  

^a UNIVERSITY OF VICTORIA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CANADA; CLINICAL COMPETENCE; DOCTOR PATIENT RELATION; HUMAN; INFORMED CONSENT; INTERPERSONAL COMMUNICATION; LEGAL ASPECT; MALPRACTICE; RISK;

CANADA; CLINICAL COMPETENCE; DISCLOSURE; DUTY TO WARN; HUMANS; INFORMED CONSENT; PHYSICIAN IMPAIRMENT; PHYSICIAN-PATIENT RELATIONS; RISK;

EID: 34547939449     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2007.00170.x     Document Type: Article

References (58)

1. Reibl v. Hughes, 2 S.C.R. 880 (1980).
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6. See Reibl, supra note 1.
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9. Id., at para. 15.
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12. Id., at 210.
13. Id., at 209 210.
14. Chester v. Afshar, [2004] UKHL 41 on appeal from: [2002] EWCA Civ 724 (2004).
15. Id., at para. 86.
16. Id., at para. 14.
17. Rogers v. Whitaker, 175 CLR 479 (1992).
18. Id., at para. 13, the court making reference to the considerations of Chief Justice Leonard King in FvR 1983 33. S.A.S.R. 189, a case before the Supreme Court of South Australia.
19. Chappel v. Hart (HC) 195 CLR 232 (1998).
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41. See Reibl, supra note 1, at 890.
42. Id., at 891.
43. Hopp v. Lepp, 112 D.L.R. (3d) 67 (S.C.C.) (1980 Turner v. Bederman, O.J. No. 1712 (G.D.) (1996); Kita v. Braig, 17 B.C.A.C. 55 (1992).
44. Id. (Kita), at para. 7. Before he performed the operation, Dr. Braig, who was 36 at the time and had been in practice as an ear, nose, and throat specialist for just over a year, was asked by Mrs. Kita, a former nurse, whether he had done the recommended procedure before, and answered "Yes." In fact, he had performed the operation on three previous occasions, but all were while he too was a resident undergoing training in his specialty and under the supervision of a senior surgeon. Counsel for Mrs. Kita characterized Dr. Braig's unqualifed answer to Mrs. Kita's question as a misstatement in the nature of a "half truth" made by Dr. Braig for the purpose of procuring consent, and says that it had that result. Counsel says such a consent amounts to no consent at all, and that the conduct of the operation therefore constituted battery, with the result that Dr. Braig was liable for all of its consequences, whether the operation was carried out with appropriate care or not.
45. See Kita, supra note 43, at para. 12.
46. Johnson v. Kokemoor, 545 Nw2d 495 (Wis. 1996).
47. Id.
48. See Bouknight, supra note 32.
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50. Whiteside v. Lukson, 947 P. 2d 1263 (Wash. Ct. App. 1997).
51. B. M. Rostolsky Practice Makes Perfect: Experience-Related Information Should Fall within the Purview of Pennsylvania's Doctrine of Informed Consent Duquesne Law Review 40, no. 3 (2002 543 60, at 559.
52. See Bouknight, supra note 32.
53. Howard v. University of Medicine and Dentistry of New Jersey, 300 A.2d 73, 83 (N.J. 2002).
54. See Halkyard v. Mathew, supra note 23.
55. See Johnson, supra note 24.
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57. Statement of the American College of Physicians to the House Ways and Means Committee Subcommittee on Health, hearing on "Health Information Technology," July 27, 2005, available at http://doctorsforadults.com/hpp/ hit_statement.pdf (last visited June 25, 2007).
58. See Johnson, supra note 24.