Answer Happy

Question #1: Informed Consent (Readings: President's Commission "The Values Underlying Informed Consent" and Majority Opinion Canterbury . Spence) 18.5 points) A professional singer, Luciano, has a cancerous tumor in his throat that is rapidly growing, The patient is extremely distressed that treatment could impact his voice since his whole life revolves around singing His doctor recommends he have the tumor removed as soon as possible. The procedure is fairly simple, with very few risks, and it will save his life. One of the few risks of the procedure, however, is irreversible damage to the vocal cords. The possibility of this risk occurring is very small (less than 1%). Knowing how much Luciano values his ability to sing the doctor is concerned that telling him about this risk could deler him from a life-saving treatment a. According to Dr. Spence, does the doctor need to tell Luciano about the less than 1% risk of irreversible damage to his vocal cords? Why or why not? b. According to the ruling in Canterbury Spence, which information does the doctor need to tell Luciano to ensure informed consent and why?(Be sure to include how the doctor would determine which information to tell Luciano according to the ruling in Canterbury Spence c. According to The Values underlying informed Consent, how does the doctor determine what constitutes being healthy for Luciano? And, how would this help the doctor promote his well-being Be sure to include a discussion of the relevant values in your answer) d. In your own opinion, if you were the doctor, what would you tell Luciano and why?
A 19-year-old man, John W. Canterbury, developed paraplegia after a laminectomy (a surgical procedure). Prior to the surgery, his physician, William Thornton Spence, did not inform Canterbury that the operation involved the risk of paralysis. Canter- bury brought an action against the physician and the hospital. In defending his de- cision to withhold the information from the patient, Dr. Spence testified that communicating the 1 percent risk "is not good medical practice because it might de- ter patients from undergoing needed surgery and might produce adverse psycho- logical reactions which could preclude the success of the operation. In this selection, Judge Robinson argues that an adult patient of sound mind has the right to determine what should be done to his or her body. Because of this right, a physi- cian has the duty to inform the patient about those dangers that "are material" to the patient's decision. The court allows two exceptions to this rule of disclosure. It holds, however, that a physician cannot remain silent simply because divulgence might prompt the patient to forgo therapy that the physician perceives tus necessary. Suits charging failure by a physician adequately to disclose the risks and alternatives of proposed treat- ment are not innovations in American law. They date back a good half-century, and in the last decade they have multiplied rapidly. There is nonetheless, dis- agreement among the courts and the commentators on many major questions, and there is no precedent of our own directly in point. For the tools enabling resolution of the issues on this appeal, we are forced to begin at first principles. The root premise is the concept, fundamental in American jurisprudence, that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body...." True con- sent to what happens to one's self is the informed ex- ercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has lit- U.S. Coun of Appeals, District of Columbia Circuit; May 19, 1972.464 Federal Report 2d Series, 772. Reprinted with person of West Publishing Company tle or no understanding of the medical arts, and ordi- narily has only his physician to whom he can look for enlightenment with which to reach an intelligent de cision. From these almost axiomatic considerations springs the need, and in tum the requirement of a rea- sonable divulgence by physician to patient to make such a decision possible.? A physician is under a duty to treat his patient skillfully, but proficiency in diagnosis and therapy is not the full measure of his responsibility. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it Due care may require a physician perceiving symp- toms of bodily abnormality to alert the patient to the condition. It may call upon the physician con- fronting an ailment which does not respond to his ministrations to inform the patient thereof. It may command the physician to instruct the patient as to any limitations to be presently observed for his own welfare, and as to any precautionary therapy he
Support INE PHYSICIAN-PATIENT RELATIONSHIP 103 should seek in the future. It may oblige the physician from the decisions. Some have said "full" disclo to advise the patient of the need for or desirability of sure, a norm we are unwilling to adopt literally. It any alternative treatment promising greater benefit seems obviously prohibitive and unrealistic to ex- than that being pursued. Just as plainly, due care nor- cept physicians to discuss with their patients every mally demands that the physician warn the patient of risk of proposed treatment—no matter how small or any risks to his well-being which contemplated ther- remote--and generally unnecessary from the pa- apy may involve tient's viewpoint as well. Indeed, the cases speaking The context in which the duty of risk-disclosure in terms of "full" disclosure appear to envision arises is invariably the occasion for a decision as to something less than total disclosure, leaving unan- whether a particular treatment procedure is to be un- swered the question of just how much. dertaken. To the physician, whose training enables a The larger number of courts, as might be ex- self-satisfying evaluation, the answer may seem pected, have applied tests framed with reference to clear, but it is the prerogative of the patient, not the prevailing fashion within the medical profession. physician, to determine for himself the direction in Some have measured the disclosure by "good med- which his interests seem to lie. To enable the patient ical practice, others by what a reasonable practi- to chart his course understandably, some familiarity tioner would have bared under the circumstances, with the therapeutic alternatives and their hazards and still others by what medical custom in the com- becomes essential munity would demand. We have explored this rather A reasonable revelation in these respects is not considerable body of law but are unprepared to fol- only a necessity but, as we see it, is as much a mat- low it. The duty to disclose, we have reasoned, arises ter of the physician's duty. It is a duty to warn of the from phenomena apart from medical custom and dangers lurking in the proposed treatment, and that practice. The latter, we think, should no more estab- is surely a facet of due care. It is, too, a duty to im- lish the scope of the duty than its existence. Any def- part information which the patient has every right to inition of scope in terms purely of a professional expect. The patient's reliance upon the physician is standard is at odds with the patient's prerogative to a trust of the kind which traditionally has exacted decide on projected therapy himself. That preroga- obligations beyond those associated with arms- tive, we have said, is at the very foundation of the length transactions. His dependence upon the physi- duty to disclose, and both the patient's right to know cian for information affecting his well-being, in and the physician's correlative obligation to tell him terms of contemplated treatment, is well-nigh abject. are diluted to the extent that its compass is dictated As earlier noted, long before the instant litigation by the medical profession. arose, courts had recognized that the physician had In our view, the patient's right of self-decision the responsibility of satisfying the vital informa- shapes the boundaries of the duty to reveal. That tional needs of the patient. More recently. we our right can be effectively exercised only if the patient selves have found "in the fiducial qualities of the possesses enough information to enable an intelli- physician-patient) relationship the physician's duty gent choice. The scope of the physician's communi- to reveal to the patient that which in his best interests cations to the patient, then, must be measured by the it is important that he should know." We now find, as patient's need, and that need is the information ma- a part of the physician's overall obligation to the pa- terial to the decision. Thus the test for determining tient, a similar duty of reasonable disclosure of the whether a particular peril must be divulged is its ma- choices with respect to proposed therapy and the dan- teriality to the patient's decision: all risks potentially gers inherently and potentially involved.. affecting the decision must be unmasked. And to
Support @ hardly be known to the physician. That would make nificance to the dangerousness of a medical technique an undue demand upon medical practitioners, whose are, of course, the incidence of injury and the degree conduct, like that of others, is to be measured in terms of the harm threatened. A very small chance of death of reasonableness. Consonantly with orthodox negli- or serious disablement may well be significant; a po gence doctrine, the physician's liability for nondis- tential disability which dramatically outweighs the closure is to be determined on the basis of foresight, potential benefit of the therapy or the detriments of not hindsight; no less than any other aspect of negli- the existing malady may summon discussion with the gence, the issue on nondisclosure must be approached patient from the viewpoint of the reasonableness of the physi- There is no bright line separating the significant cian's divulgence in terms of what he knows or should from the insignificant; the answer in any case must know to be the patient's informational needs. If, but abide a rule of reason. Some dangers—infection, for only if, the fact-finder can say that the physician's example--are inherent in any operation; there is no communication was unreasonably inadequate is an obligation to communicate those of which persons imposition of liability legally or morally justified. of average sophistication are aware. Even more Of necessity, the content of the disclosure rests clearly, the physician bears no responsibility for dis- in the first instance with the physician. Ordinarily it cussion of hazards the patient has already discov- is only he who is in position to identify particular ered, or those having no apparent materiality to dangers, always he must make a judgment, in terms patients' decision on therapy. The disclosure doc- of materiality, as to whether and to what extent rev- trine, like others marking lines between permissible elatinn to the patient is called for. He cannot know and impermissible behavior in medical practice, is in with vomplete exactitude what the patient would essence a requirement of conduct prudent under the consider important to his decision, but on the basis circumstances. Whenever nondisclosure of particu- of his medical training and experience he can sense lar risk information is open to debate by reasonable- how the average, reasonable patient expectably minded men, the issue is for the finder of the facts. would react: Indeed, with knowledge of, or ability Two exceptions to the general rule of disclosure to learn, his patient's background and current con- have been noted by the courts. Each is in the nature of dition, he is in a position superior to that of most a physician's privilege not to disclose, and the reason- others attorneys, for example who are called ing underlying them is appealing. Each, indeed, is but upon to make judgments on pain of liability in dam- a recognition that, as important as is the patient's right ages for unreasonable miscalculation. to know, it is greatly outweighed by the magnitudi- From these considerations we derive the nous circumstances giving rise to the privilege. The breadth of the disclosure of risks legally to be re- first comes into play when the patient is unconscious quired. The scope of the standard is not subjective as or otherwise incapable of consenting, and harm from to either the physician or the patient; it remains ob- a failure to treat is imminent and outweighs any harm jective with due regard for the patient's informa- threatened by the proposed treatment. When a genuine tional needs and with suitable leeway for the emergency of that sort arises, it is settled that the im- physician's situation. In broad outline, we agree that practicality of conferring with the patient dispenses "(a) risk is thus material when a reasonable person, with need for it. Even in situations of that character the in what the physician knows or should know to be physician should, as current law requires attempt to the patient's position, would be likely to attach sig- secure a relative's consentif possible. But if time is nificance to the risk or cluster of risks in deciding too short to accommodate discussion, obviously the whether or not to forgo the proposed therapy." physician should proceed with the treatment The topics importantly demanding a communi- The second exception obtains when risk disclo- cation of information are the inherent and potential sure poses such a threat of detriment to the patient as
THE PHYSICIAN-PATIENT RELATIONSHIP 10 to become unfeasible or contraindicated from a med- ical point of view. It is recognized that patients occa- sionally become so ill or emotionally distraught on disclosure as to foreclose a rational decision, or com- plicate or hinder the treatment, or perhaps even pose psychological damage to the patient. Where that is So, the cases have generally held that the physician is armed with a privilege to keep the information from the patient, and we think it clear that portents of that type may justify the physician in action he deems medically warranted. The critical inquiry is whether the physician responded to a sound medical judg- ment that communication of the risk information would present a threat to the patient's well-being. The physician's privilege to withhold informa- tion for therapeutic reasons must be carefully cir- cumscribed, however, for otherwise it might devour the disclosure rule itself. The privilege does not ac- cept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forgo therapy the physician feels the patient really needs. That attitude presumes instability or perversity for even the normal patient, and runs counter to the foundation principle that the patient should and ordinarily can make the choice for himself. Nor does the privilege contemplate op eration save where the patient's reaction to risk in- formation, as reasonably foreseen by the physician, is menacing. And even in a situation of that kind, disclosure to a close relative with a view to securing consent to the proposed treatment may be the only alternative open to the physician.... alternatives to und das of the therapy is commonly denominated Informed consent. The same appellationis frequently assigned to the doctrine requiring physicians, matter of duty to patients, to communicate information as to sich alternatives and risks. See, eg. Comment, Informed Consent in Medical Malpractice. 55 Calif. L. Rev. 1396 (1967). While we mcognize the general utility of sborband phrases in literary expositions, we caution that critical use of the forma con label can be misleading Sec. Plante, An Analysis of "Informed Content" 36 Ford. L. Rev. 639.671-72 (1968) La duty to disclose cases, the focus of attention is more properly upon the nature and content of the physician's divulgence than the patient's understanding or content Adequate disclosure and informed ostare, of corne two sides of the ecoin the former sine que non of the latter. But the vital inquiry on duty to disclose relaties to the physician's performance of an obligation, while one of the difficulties with analysis in terms of informed Connie is tendency to imply that what is decisive is the degree of the patient's comprehension. As we later emphasize, the physician discharges the duty when he makes ressonable effort to convey sufficient information although the patient without fault of the physician, may not fully grasp it. Even though the factfinder may have OCCASIOS to draw a frecce on the state of the patient's enlightenment, the fact-finding procese on performance of the dety ultimately reaches back to what the physicias actually said or failed to say. And while the factual conclusione day of the revelation will vary as between patients, for example, between alay patient rod a physicies patient- the fluctuations are tributable to the kind of divulgace which may be reasonable weder the circumstance 3 Some doubt has been expeted us to the ability of physciatoiably communicate their evaluation of maksad the detages of optional treatment, and as to the Sy patient's ability to understand what the physician talle No Karcher, Infermed Consent A Plaintiff's Medical Malpractice Wooder Drag 31 Mo. L Rev. 29,41 (1966) We do not have the apprehension. The discussion need bendinga od surely the physicia is not compelled to give is patient a short medical education: the disclosure rule the physician only to see explanadoo. Tham generally informing the patient in -technical terms to what laat stake the therapy ledve epen to him, the goals expectably to be chieved, and then that may ensue from particular od moment. So informing the patient handly w the physician and must be the sceptional patient who cannot been chan explanation at least in phy 4 weet the region that disclosure hould be crew with the physician NOTES 1 Patients ordinarily are persona unlearned in the medical science. Some few, of course, are schooled in branches of the medical proconloo or in related fields. But even with the latter group variations in degree of medical knowledge specifically referable to particular therapy may be broad. for example, between a specialist and a genul practitioner, a or between a physician andre. It may well be, then, that it is only in the unusual car that court could safely aware that the patient's insights were on a perity with those of the treating physician 2 The doctrine that a cost effective wwwthority to perform therapy can are only from the patient's understanding of ET