Informed Consent and the Role of the Treating Physician

New England Journal of Medicine, Vol. 378(25), Pg. 2433, June 21, 2018

U of Penn Law School, Public Law Research Paper No. 19-01

7 Pages Posted: 28 Dec 2018

See all articles by Eric A. Feldman

Eric A. Feldman

University of Pennsylvania Law School

Holly Fernandez Lynch

Department of Medical Ethics and Health Policy, Perelman School of Medicine, University of Pennsylvania

Steven Joffe

University of Pennsylvania - Perelman School of Medicine

Date Written: June 21, 2018

Abstract

In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, a recent Pennsylvania Supreme Court case, demonstrates the dangers of a narrow, rigid approach to consent.

Keywords: Health law, ethics, human rights, medical treatment options, informed consent policies & practices, Pennsylvania Medical Care Availability and Reduction of Error Act, MCARE, Shinal v. Toms, responsibility for obtaining consent, agent, specialization, nondelegable duty, team-based health care system

Suggested Citation

Feldman, Eric A. and Lynch, Holly Fernandez and Joffe, Steven, Informed Consent and the Role of the Treating Physician (June 21, 2018). New England Journal of Medicine, Vol. 378(25), Pg. 2433, June 21, 2018, U of Penn Law School, Public Law Research Paper No. 19-01, Available at SSRN: https://ssrn.com/abstract=3304813

Eric A. Feldman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-573-6400 (Phone)
215-573-2025 (Fax)

Holly Fernandez Lynch

Department of Medical Ethics and Health Policy, Perelman School of Medicine, University of Pennsylvania ( email )

423 Guardian Drive
Philadelphia, PA 19104
United States

Steven Joffe

University of Pennsylvania - Perelman School of Medicine ( email )

423 Guardian Drive
Philadelphia, PA 19104
United States

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