Modernizing Informed Consent: Expanding the Boundaries of Materiality
56 Pages Posted: 7 Jun 2015 Last revised: 16 Sep 2017
Date Written: May 26, 2015
Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, there is little broader discussion and no consensus about whether there the doctrine of informed consent should be expanded to include information that may be relevant to patients but falls outside the traditional scope of medical materiality. This article seeks to fill that gap.
I offer a normative argument for expanding the scope of informed consent disclosure to include non-medical information that is within the physician’s knowledge and expertise, where the information would be material to the reasonable patient and its disclosure does not violate public policy. This proposal would result in a set of disclosure requirements quite different from the ones set by modern common law and legislation. In many ways, the range of required disclosures may become broader, particularly with respect to physician-specific information about qualifications, health status, and financial conflicts of interests. However, some disclosures that are currently required by statute (or have been proposed by commentators) would fall outside the scope of informed consent – most notably, information about support resources available in the abortion context; about the social, ethical, and legal implications of treatment; and about health care costs.
Note: SSRN version posted is a pre-publication draft.
Keywords: informed consent, medical materiality, disclosure
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