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Published online by Cambridge University Press: 29 July 2009
At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and adopted the “American” patient-oriented standard (rather than the British doctor-oriented standard) for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era.
1. Rogers v. Whitaker, Unreported High Court of Australia, November 19, 1992 (F.C. 92/045) (“High Court Decision”).
2. Of course, this is not the only school of medicine that perceives one of the obligations of the physician as keeping some kinds of information from patients. See Edelstein, L. In: Temkin, O, Temkin, CL, eds. Ancient Medicine. Baltimore: Johns Hopkins University Press, 1987.Google Scholar
3. It uses language almost verbatim from that used in the leading American case, Canterbury v. Spence, 464 F.2d 772, 787 (D.C.Cir 1972), quoting Walz, JR, Schueneman, TW. Informed consent to therapy. Northwestern University Law Review 1970;64:628, 640.Google Scholar
4. See Gibson, J, Kushner, T. Ethics committees: how are they doing? Hastings Center Report 1986; 16(3):9CrossRefGoogle Scholar; and Furrow, B, Jost, T, Johnson, S, Schwartz, R. Bioethics: Health Care Law and Ethics. St. Paul, Minnesota: West Publishing Company. 1991:391–403.Google Scholar
5. Handley, JA. Rogers v. Whitaker. New South Wales Law Review 1991;23:610.Google Scholar
6. See note 5. Handley, , 1991;23:610.Google Scholar
7. See note 5. Handley, , 1991;23:621.Google Scholar
8. Whitaker v. Rogers, (1990) Aust. Torts Rep. 81–062.Google Scholar
9. See note 5. Handley, , 1991;23:600.Google Scholar
10. For a general overview of the law of torts and a description of the law of negligence and battery in Australia, where the general legal principles reflect a common law consensus, see Fleming, J. The Law of Torts. 7th ed. 1987Google Scholar. The history of informed consent is provided in a number of general treatises. See Louisell, D, Williams, H. Medical Malpractice. 1987:sec. 22.04Google Scholar; and Kennedy, I, Grubb, A. Medical Law. 1989:216–229Google Scholar. For an account of the Australian history, see Bromberger, B. Patient participation in decision making: are the courts the answer? University of New South Wales Law Journal 1983;6:1Google Scholar. For an account of the relationship between the negligence and battery forms of informed consent actions, see Somerville, M. Structuring the issues in informed consent. McGill Law Journal 1981;26:740.Google ScholarPubMed
11. Furrow, B, Jost, T, Johnson, S, Schwartz, R. Health Law. St. Paul, Minnesota: West Publishing Company. 2nd ed. 1991:321.Google Scholar
12. See Gouse v. Cassel, 385 Pa. Super. 521, 561 A.2d 797, 800 (1989). “We refuse to eviscerate the doctrine of informed consent by predicating materiality and, thus, the mandate for disclosure of risks and alternatives, upon a factfinder's determination that a plaintiff-patient would have declined treatment had the disclosures been made.” See also Moure v. Raeuchele, 387 Pa. Super. 127, 563 A.2d 1217 (1989), and note 11. Furrow, , 1991:327.Google Scholar
13. See note 1, p. 11.
Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negli- gence and not in trespass; the intent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed. [footnote omitted]
14. The House of Lords adopted this rule in Sidaway v. Governors of Bethlem Royal Hospital, [1985] 1 All E.R. 643Google Scholar, applying the general rule of liability established in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, for medical malpractice claims based in diagnosis and treatment.Google Scholar
15. See note 4. Furrow, et al. , 1991:336–7Google Scholar. See also note 11. Furrow, et al. , 1991.Google Scholar
16. See note 4. Furrow, et al. , 1991:336–7Google Scholar. See also note 11. Furrow, et al. , 1991.Google Scholar
17. Reibl v. Hughes, (1980) 114 D.L.R.3d 1.Google Scholar
18. So called, no doubt, to distinguish it from the British rule adopted in the Sidaway case. This American rule was first adopted in Canterbury v. Spence, 464 F.2d 772 (D.C.Cir 1972) (see note 3), and there are several variations of the rule that have been adopted in different states.
19. Although the breach of a duty of care is often described as “negligence,” the issue is a bit more complicated. To make a successful prima facie case for negligence, a plaintiff must show that the act (or omission) that constituted the breach of duty actually and proximately cause an injury of a kind recognized in law. See J. Fleming, supra note 10. In Rogers, the High Court did not address the causation issue because counsel for the appellant made no submission on that point, which consequently was deemed waived. See note 1, p. 12.
20. See note 1, pp. 2–3.
21. The High Court cited several authorities, but ultimately adopted the approach described by Chief Justice King of the South Australia Supreme Court in F. v. R., (1983) 33 SASR 189, described by the High Court; see note 1, pp. 8–9.Google Scholar
22. See note 1, p. 10.
23. See note 1, p. 11.
24. This duty may be a consequence of its organization in this form, it may independently be a consequence of its explicit advertising of itself in this way, or it may stem from an implicit promise that all such organizations will look after their members’ health.
25. Ironically, medical practitioners who fear liability in informed consent actions have strongly opposed the battery theory of informed consent. They may find themselves with much more substantial and ambiguously defined duties, including the duty to educate their patients, and consequently a much broader malpractice liability under the currently prevailing negligence theory.
26. This statute requires hospitals, skilled nursing facilities, home health agencies, hospice programs, and HMOs that receive Medicaid or Medicare funding to provide their patients with, at least, a description of “an individual's rights under State law (whether statutory or as recognised by the Courts of the State) to make decisions concerning … medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives. …” 42 U.S.C.A. sec. 1395cc(a)(l)(f)(l)(a).
27. See note 4. Gibson, Kushner, 1986;16(3):9.Google Scholar
28. 48 C.C.L.T. 280 (Cour superieure de Quebec, , 1989).Google Scholar
29. See note 28, p. 282.
30. Ultimately, the hospital ethics committee decision was successfully challenged in Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986).
31. See note 1, pp. 6, 12.
32. 27 Cal. 3d 285, 165 Cal. Rptr. 308, 611 P.2d 902 (1980). One dissenting California Supreme Court Justice feared that the requirement of explanation might be extended to “all diagnostic procedures allegedly designed to detect illness which could lead to death or serious complication” (p. 910).
33. Wilson v. Chesapeake Health Plan, Inc. (Circuit Ct., Baltimore, Maryland, No. 88019032/CL 76201). Professor Barry Furrow of Widener University describes the case in the following way:
One ongoing case based in part on an expansive view of physician obligations is [the Wilson case]. The plaintiff Hugh Wilson … developed liver disease. He was a member of a prepaid health plan, [the Chesapeake]. Dr. Cooper, a specialist to whom Wilson was referred by his primary care physician, repeatedly assured Wilson that a liver transplant would be covered under his HMO coverage.
Dr. Cooper made arrangements with Presbyterian Hospital in Pittsburgh, Pennsylvania, to put him on the list of donor liver recipients and to perform the transplant. In August of 1985 Wilson arrived at Presbyterian Hospital. At that time Chesapeake advised the hospital that they were not certain that the plan would cover the transplant. Wilson's admission was delayed, and a demand for full payment was made. Wilson's wife Joyce worked to obtain financing. On August 28, a suitable liver was available but because Mr. Wilson lacked evidence of financial coverage of the procedure, the hospital threw the liver away. Between August 29 and September 4 Wilson deteriorated further. His wife returned to Baltimore to work further on the financing problem, and he learned that the Maryland Medical Assistance Program (i.e., Medicaid) would pay for the procedure once the Wilsons had spent down their savings. During this period a second liver became available, but it was also thrown away. By September 4, Wilson had deteriorated further. On September 5 Joyce Wilson returned to find Wilson in a coma. He died on September 6.
The plaintiffs pleaded a variety of theories. Count 16, negligence, alleged that Dr. Cooper and the health plan “knew or should have known that staff and resources existed to assist the Wilsons in determining the scope of coverage provided by their HMO, other insurers, and alternative funding sources, but they failed to utilize such resources, alert plaintiff of the existence of such resources or advise them of the need to identify a funding source.” [Complaint, p. 33. This count in the complaint withstood both a motion to dismiss and a motion for summary judgment].
The Wilson duty means that providers, including outside specialists, should at a minimum know enough to refer patients to experts with a managed care organization or hospital, as to possible sources of funding for a medically necessary procedure. The bundle of services offered by the health care provider, in these times of limited resources, now includes not only medically correct diagnosis and treatment that complies with the standard of care, but also informa- tion as to how to fund such care.