Eliminating Liability for Lack of Informed Consent to Medical Treatment

Valerie Gutmann Koch *

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 lack of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed, namely the elimination of liability for failure to provide informed consent to medical treatment. In doing so, this article evaluates the rationale and procedure for abolishing a common law private right of action for lack of 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 lack of informed consent to treatment. Abolishing liability for lack of informed consent in treatment would not only eliminate the deterrent effect for potential bad actors, but would also remove recourse for those who have suffered harm due to a failure of informed consent.

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      * Director of Law & Ethics, MacLean Center for Clinical Medical Ethics at the University of Chicago; Visiting Fellow at DePaul University College of Law; Chair of the American Bar Association’s Special Committee on Bioethics & the Law. J.D., Harvard Law School; A.B., Princeton University.

I would like to offer particular gratitude to Ting Liu, who provided extensive research support for this project. In addition, thank you to Professor Michael Waitzkin, who enabled this project to come to fruition through the Duke Institute for Science & Society summer practicum; Elizabeth Yang, Deputy Director of the Division for Public Services; and the American Bar Association, for coordinating this effort with the ABA Special Committee on Bioethics & the Law. Valuable discussion of this article was provided by Wendy Netter Epstein and Nadia Sawicki.

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