Reconceptualizing Informed Consent in an Era of Health Care Cost Containment
126 Pages Posted: 12 Apr 2007 Last revised: 27 Jul 2010
Abstract
This article considers how to preserve patient rights to full information about medical treatment options in an increasingly cost-sensitive health care environment. The article takes the position that current trends in the health care market provide incentives for physicians and insurers to economize on information as well as on care, such as by failing to disclose treatments that will not be covered by a patient's insurance. While most commentators have assumed that such nondisclosure violates the law of informed consent, the answer is far less clear. Historically, the law's protection of information regarding treatment alternatives has been tenuous, and many elements of the informed consent cause of action remain problematic for plaintiffs. Thus, while the failure to disclose noncovered alternatives may be a clear violation of the spirit of informed consent, it may not in fact violate the law in any particular jurisdiction. In sum, the traditional law of informed consent is ill-equipped to address failures to disclose treatment alternatives. The article argues that preserving patient self-determination in this new health care environment will require a reconceptualization of informed consent: a move away from pure tort law or consumer protection strategies and toward a more coherent regulatory approach, such as the use of the professional disciplinary structure to enforce the physician's obligation to disclose.
Keywords: informed consent, managed care, treatment alternatives
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