From Tragedy to Catastrophe: Lawyers and the Bureaucratization of Informed Consent

Abstract

In Silent World of Physician and Patient, Jay Katz recognizes the distinction between the idea of informed consent and the legal doctrine of informed consent. Prof. Katz wrote so eloquently about what happened to the idea of informed consent when it fell into the hands of lawmakers. This paper discusses what happened to the legal doctrine of informed consent when it fell into the hands of lawyers and health care managers. Instead of focusing on the goals that the requirement of obtaining informed consent sought to promote - patient self-determination, informed decision-making, and protection from harm chief among them - lawyers for doctors and hospitals instead focused on documenting whether information had been disclosed, even if in fact it had not been. Thus the centerpiece of informed consent became the consent form rather than the process of disclosure - and the opportunity it provided for discussion between physician and patient.

Keywords: informed consent, bureaucracy, litigation, malpractice, shared decisionmaking, consent form