Eliminating Liability for Informed Consent to Medical Treatment

34 Pages Posted: 16 Aug 2018 Last revised: 30 Oct 2018

See all articles by Valerie Gutmann Koch

Valerie Gutmann Koch

University of Chicago - MacLean Center for Clinical Medical Ethics; DePaul University - College of Law

Date Written: July 1, 2018

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.

Suggested Citation

Gutmann Koch, Valerie, Eliminating Liability for Informed Consent to Medical Treatment (July 1, 2018). Available at SSRN: https://ssrn.com/abstract=3225264 or http://dx.doi.org/10.2139/ssrn.3225264

Valerie Gutmann Koch (Contact Author)

University of Chicago - MacLean Center for Clinical Medical Ethics ( email )

5841 S Maryland Ave
Chicago, IL 60637-1470
United States

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

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