Eliminating Liability for Informed Consent to Medical Treatment

Abstract

The legal doctrine of informed consent, which imposes tort liability for failure to disclose the risks, benefits, and alternatives of a proposed medical intervention, is often criticized for emphasizing ritual over relationships, contributing to the deterioration of the doctor-patient relationship by encouraging the practice of defensive medicine. This article considers a rather radical response to the allegations that the tort of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed: the elimination of liability for failure to provide informed consent to medical treatment. In doing so, it evaluates the rationale and procedure for abolishing a common law private right of action for informed consent, as well as potential alternatives to tort liability for failure of informed consent to medical treatment. The article concludes that the time has not come for a wholesale elimination of the private right of action for informed consent to treatment. Abolishing liability for informed consent in treatment will not only eliminate the deterrent effect for potential bad actors, but it would also remove recourse for those who have suffered harm due to a failure of informed consent.