Case example

Fifty-seven-year-old Mr. Evans arrives at the Emergency Department of a large teaching hospital complaining of chest pain, cough, and shortness of breath. Chest x-rays are obtained, and they reveal a large pleural effusion (a buildup of fluid between the layers of tissue that line the lungs and the chest cavity). Mr. Evans is admitted to the hospital and is assigned to a general internal medicine inpatient team. The team concludes that a thoracentesis (removal of accumulated pleural fluid with a needle inserted between the ribs) should be done to allow Mr. Evans's lungs to expand more freely, making breathing easier, and to obtain a fluid sample for testing. The senior resident asks Dr. Collins, the first year resident on the team, to perform the thoracentesis, and she agrees. Dr. Collins has observed this procedure on multiple occasions, but she has never performed a thoracentesis before. In obtaining Mr. Evans's consent, must she inform him that this will be the first time she has performed this procedure?

Origins and moral grounds

First introduced in the United States more than half a century ago, informed consent to medical treatment is now generally recognized as a fundamental moral and legal right of patients. This chapter will examine the origins, moral grounds, and essential elements of informed consent. It will also describe recognized exceptions to the professional duty to obtain the patient's informed consent.

The concept of informed consent has its origins in medical law. Early twentieth-century cases in the United States recognized a right to consent to proposed treatment, articulated in a classic statement by Justice Benjamin Cardozo in 1914: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.” Cardozo refers to assault, and early consent cases relied on legal concepts of assault and battery, understood in this context as the intentional, nonconsensual, and offensive touching of a patient by a physician.

In a series of cases beginning in 1957, US courts expanded the established duty to obtain a patient's consent into a duty to obtain an informed consent, that is, to obtain consent after providing specific information about the proposed treatment to the patient.