HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, November 24, 2014

Guest Blogger Assistant Professor Marc D. Ginsberg: Informed Consent

GinsbergThe law of informed consent has been the subject of scholarship for many years, and with good reason. Informed consent is central to the physician-patient relationship, emphasizing patient autonomy. The springboard for the doctrine may have been Canterbury v. Spence, 464 F.2d 773 (D.C. Cir. 1972). Canterbury speaks to the intent of informed consent to apply to a specific treatment or therapy which is recommended for a specific diagnosis.

My most recent law review article, to appear in the Wayne Law Review, addresses the expansion of informed consent to a doctrine of full disclosure, requiring the physician to disclose the differential diagnosis and various tests/treatments to explore the differential diagnosis. The paper focuses on the experiences in Wisconsin, Washington State and Alaska.

An expanded law of informed consent, much broader than envisioned by Canterbury, will adversely impact patients. Patients opting for a complete work-up of the differential diagnosis will be subjected to unnecessary tests and procedures, which may result in complications. Requiring the full disclosure of the differential diagnosis will stress “health literacy.” There is abundant literature discussing how little of what the physician communicates to the patient is understood by the patient. Furthermore, the cost of unnecessary diagnostic testing is substantial. Finally, literature discussing the typical length of an office visit with a primary care physician suggests that there is insufficient time for a physician to engage in the disclosure and explanation of the differential diagnosis.

The Wisconsin experience with a full disclosure informed consent law recently yielded a change in the informed consent statute. In 2012, Jandre v. Wisconsin Injured Patients And Families Compensation Fund, 340 Wis. 2d 31, 813 N.W.2d 627 (2012) was decided by the Supreme Court of Wisconsin, confirming the full disclosure requirement of the statute. The Jandre opinion was immediately challenged by influential medical associations in Wisconsin, culminating in a needed amendment to the statute.

The law of informed consent will remain a focal point of the physician-patient relationship. Patient autonomy is a noble goal, but expanding informed consent to include the disclosure of the differential diagnosis is not practical.

-Assistant Professor Marc D. Ginsberg

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