The Ambiguous Effects of Tort Law on Bioethics: The Case of Doctor-Patient Communication

Abstract

Tort law is an important tool in enforcing a minimal level of good behavior. But what is appropriate for law is not necessarily appropriate for ethics or for norms of professional practice.

"The only way I could get my surgeon, a seasoned professional, to talk to me about the details and alternatives to the operation he was planning... was to refuse to sign the consent form. . . . We then had a long conversation. His knowledge and experience helped me, but this help came only after I hit him with the only two-by-four a patient has." - Arthur W. Frank, At the Will of the Body: Reflections on Illness

Law and ethics are often strange but intimate bedfellows, and this observation is nowhere more true than in the field of bioethics. From a positive perspective, the robust interdisciplinary culture of bioethics allows scholars to emerge from the confines of narrowly conceived academic and professional pigeonholes. Scholars with "JD" after their names often function much like philosophers, and the roles they play on national commissions and other influential committees range widely and are not limited to the legal arena. Similarly, ethicists without formal legal training make important contributions to legal topics in bioethics. However, there are substantial areas of bioethics that have been stunted by the influence of legal thinking, and by an unstated, often unexamined, subservience to legal norms. In this essay, I will focus on the effects of tort law on an important area of bioethics: physician-patient communication.

Keywords: informed consent, tort