63 Pages Posted: 22 Jan 2013 Last revised: 9 Apr 2013
Date Written: January 22, 2013
Due to advances in medicine, patients now have a wide-array of treatment options. Legal and ethical principles favoring patient autonomy theoretically give patients the right to choose among these options based on their personal values and preferences. But the right to choose is only meaningful if the patient is given sufficient information to make an intelligent decision. This article explains why informed consent laws fail to perform their function of protecting patients’ interests in receiving the information they need to exercise their personal preferences. In all but four states, a patient cannot prevail on an informed consent claim without proving objective causation. That standard forces the courts to focus on the hypothetical preferences of a reasonable person, rather than on the values and priorities of the individual patient.
The medical information patients receive from physicians reflects this focus on the hypothetical reasonable patient. The informed consent process often consists of a formalistic recitation of risks and alternatives intended to protect the physician against liability, rather than a joint process during which the physician and patient coordinate to ensure that the patient’s decisions are based on individual preferences and concerns. The Affordable Care Act recognizes this deficiency and includes a program to “facilitate the incorporation of patient preferences and values into the medical plan.”
This article argues that courts and state legislatures must also do their part by abandoning objective causation so informed consent laws can perform their essential role of protecting patients’ informational interests. The article traces the history of informed consent and shows why the doctrine is ripe for change. It recommends adopting a subjective causation standard and explains why this standard is an attractive option. The article also proposes using new computer systems to help make the informed consent process easy, effective, and relatively inexpensive.
Keywords: informed consent, objective causation, subjective causation, preferences, battery, autonomy, negligence, disclosure, Affordable Care Act, electronic communication, multimedia, decision aids, computer
JEL Classification: I100, I10, I18, K13, K41
Suggested Citation: Suggested Citation
Tenenbaum, Evelyn M., Revitalizing Informed Consent and Protecting Patient Autonomy: An Appeal to Abandon Objective Causation (January 22, 2013). Oklahoma Law Review, Vol. 64, 2012; Albany Law School Research Paper No. 27 for 2012-2013. Available at SSRN: https://ssrn.com/abstract=2205413