73 Pages Posted: 15 Oct 2008
Date Written: 2006
Health services research performed over the last three decades has established a body of evidence that undermines a number of the fundamental assumptions of our informed consent laws. Currently there is a divide among the states about what standard prevails in informed consent cases between physician-based states and patient-based states. In physician based states, the courts apply a standard of what information would the reasonable physician disclose to the patient under like or similar circumstances. In patient based states, the courts apply the standard of what information would the objective reasonable patient want under like or similar circumstances. Both standards fail but for different reasons. The physician based standard fails to recognize that there is no true objective standard that physicians follow and in fact there is large practice variation amongst physicians even in the same geographic region. The patient based standard fails to recognize that patient's values and preferences vary widely depending on the individual patient. How a particular patient perceives the medical treatment information based upon their own, lifestyle, values and preferences will dictate what course of treatment to follow. Evidence suggests that informed medical decision making strengthens the therapeutic alliance and improves patient satisfaction. It also reduces in many instances costly surgical interventions.
The health services research of Wennberg et al, accompanied with evidence of patient dissatisfaction with current disclosure practices suggests that an overhaul of our current informed consent system is necessary. Shared decision-making, a process that requires both the physician and the patient to engage in a discussion of all relevant information regarding the treatment options, including the risks, benefits and alternatives to treatment, as well as the individual patient's lifestyle, values and preferences, offers a promising alternative to our current system. However, many physicians, lawyers and scholars argue that shared decision-making will consume too much time, money and scarce medical resources in an already overburdened medical system. This article examines these claims and concludes that despite the bureaucratic headaches, the enormous expenditure of financial and human resources, and the need for state by state adoption of new informed consent laws, the long-term benefits of shared decision-making and the use of evidence based decision aids to promote patient understanding of medical information to arrive at informed medical decision making far outweigh the costs for both patients and physicians.
Keywords: shared decision-making, informed consent, medical ethics, patient decision-making
Suggested Citation: Suggested Citation
King, Jaime S. and Moulton, Benjamin, Rethinking Informed Consent: The Case for Shared Medical Decision-Making (2006). American Journal of Law and Medicine, Vol. 32, pp. 429-501, 2006. Available at SSRN: https://ssrn.com/abstract=1284511