Loyola University Chicago Law Journal, Vol. 31, p. 557, Summer 2000
41 Pages Posted: 28 Sep 2000 Last revised: 2 Nov 2008
Courts and commentators have forgotten that embedded in the duty of physicians to obtain a patient's informed consent is a prior obligation for physicians to get to know that patient. This is most clear in jurisdictions employing the reasonable person standard of disclosure. That standard requires physicians to disclose to a patient information that a reasonable person would want to know if that person were in the patient's position or, more precisely, if that person were "in what the physician should know to be the patient's position." Thus, a physician must learn some minimal information about each patient's "position." An examination of common law reveals that, with rare exception, courts interpret the patient's position to mean nothing more than the patient's medical condition. This article argues that such an understanding of each patient is insufficient for the purposes of achieving efficient use of clinical time, healthy outcomes, and patient autonomy. Instead, the law should require physicians to make a reasonable inquiry about each patient's treatment goals. Such an inquiry will dispel incorrect assumptions that can result from a mere medical assessment of each patient. Under a reasonable inquiry rule, patients would be less likely to receive unnecessary treatment, more likely to play a role in planning their own treatments, more likely to comply with treatment plans and more likely to perceive their physicians as caring professionals. The article concludes that the rule of reasonable inquiry about patients' treatment goals strikes an appropriate balance between the need for autonomy and the need for clinical efficiency.
JEL Classification: I12, I18, K13, K32
Suggested Citation: Suggested Citation
Gatter, Robert, Informed Consent Law and the Forgotten Duty of Physician Inquiry. Loyola University Chicago Law Journal, Vol. 31, p. 557, Summer 2000. Available at SSRN: https://ssrn.com/abstract=239825