Patients' rights and Informed Consent

The current attitude toward consent and patient rights in the US can, in large part, be traced to a decision by Justice Cardozo in 1914 (Schloendorff v. Society of New York Hospital). This decision outlined a principle of self-determination, called Cardozo's root premise, and reads as follows:

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and the surgeon who performs an operation without his patient's consent commits an assault for which he is liable for damages. This is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained."

Informed consent has since evolved from obtaining the patient's verbal permission prior to initiating treatment, to a complicated process which aims to involve the patient in decision-making.

Currently, informed consent can be described as a three part process:

1. Disclosure and explanation to the patient, in a language which the patient can understand, the nature of a proposed procedure or treatment, its potential risks and benefits, and reasonable alternatives, if any exist.
   
   
2. Ensuring that the patient understands what has been explained.
   
   
3. Acceptance of the risk by the patient and consent to proceed.
   

The final, but important part of informed consent is documenting, in writing or other suitable medium, the particulars of the three parts noted above. Two common malpractice claims involving issues of informed consent are:

1. Battery, which is the claim that the patient did not give his/her consent prior to initiating the treatment or proceedure or treatment in question.
   
   
2. Lack of informed consent, where a patient claims that he or she was not given adequate information prior to a treatment or procedure, and if he or she was given such information, he or she would have made a different decision.

A most famous example is a Connecticut case where a woman with lupus underwent needle biopsy of her kidney and experienced a complication resulting in perforation of her gall bladder and necessitating open cholecystectomy. She successfully claiming that she would have opted for an open renal biopsy HAD SHE KNOWN IT WAS AN OPTION. In its decision, the court stated that "all viable alternatives [must] be disclosed [to the patient] even though some involve more hazards than others". In this case, the patient sued claiming she had given UNINFORMED consent. In most cases where a procedure is performed without first obtaining informed consent, the patient can successfully sue no matter the outcome. Suits in this situation, i.e. battery suits, are based on the failure to furnish full information, and for depriving the patient of his or her right to choose treatment alternatives. In addition to being the basis for a civil lawsuit, battery is also a criminal offense and, in the view of the courts, performing unwanted treatment on a patient is no different than physically assaulting them with a weapon (although few cases end up in the criminal courts).