Strict Liability and Informed Consent: Don\u27t Say I Didn\u27t Tell You So!

Abstract

The purpose of this article is the cogent presentation of the arguments favoring application of contemporary strict tort liability concepts to the doctrine of informed consent. While not a panacea, adoption of this proposal would afford the consumer of medical services the requisite protection to make an effective, informed medical choice, while lending consistency and certainty to the physician, long harrassed, both morally and legally, by doubts as to what constitutes an informed consent. This author will assume, arguendo, for the purpose of this article that all physicians are good-faith, competent practitioners. However, the reader should be forewarned: The existing requirement that medical consumers render an informed consent constitutes a knotty and complex problem, both ethically and legally, for the most conscientious and competent medical practitioner. Entrusting enforcement of the existing informed consent laws to the few physicians who fail to adhere to the high standards promulgated by the medical profession can be likened to deploying the fox to guard the henhouse. Likewise, the reader should note that the proposed standard of strict tort liability applies only to the situation in which the physician has failed to adequately advise the patient of the attendant risks of the proposed treatment, and not to a physician\u27s liability for treatment where informed consent has been obtained