TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, November 19, 2012

Culhane et al. on Informed Consent

John Culhane (Widener), King-Jean Wu (National Taiwan University), Oluyomi Faparusi (Widener), and Eric Juray (Widener) have posted to SSRN Toward a Mature Doctrine of Informed Consent:  Lessons from a Comparative Law Analysis.  The abstract provides:

Under the doctrine of informed consent, physicians owe patients a duty to disclose to them all material risks of a contemplated treatment or procedure. While the doctrine is generally well accepted in the United States and several other common law countries, it has had a rockier reception in other places. This inconsistency is on its face surprising, given that the doctrine stems from the principle of patient autonomy – a principle to which most countries supposedly subscribe. Unless the patient is in possession of sufficient information, that autonomy may be compromised. But the inconsistency is less puzzling when one considers the difficulty of applying the doctrine to the actual physician-patient relationship.

This article examines the doctrine in four countries that have had different responses to informed consent: the United States; Great Britain; Canada; and Taiwan. This comparison highlights the compromises that each of these jurisdictions has made to the foundational principles of informed consent, and then proposes a way forward by borrowing heavily from the Canadian model.


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Two lawyers are drinking in a bar. One says to the other one, "I got a great medical malpractice case today. I am going to make a fortune."

The other lawyer's interest is stirred, "Really? Tell me the details."

The first lawyers says, "Well, it is a great informed consent case...."

The other lawyer responds, "Oh, so you really don't have a case, do you?"

The first lawyer looks glum and whispers, "No, not really..."

Posted by: Tony Francis | Nov 20, 2012 8:13:42 AM

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