The “medical malpractice crisis” in the 1970s involved not only a greater number of suits, but also the emergence of new sorts of claims against medical practitioners. One such claim was the wrongful birth suit, where parents sued their physician on their own behalf for negligence that resulted in the birth of an unwanted child. A related claim, wrongful life, involved a suit brought on behalf of a defective infant against a physician or laboratory that failed to give correct information about a potential defect to the parents. These claims have been the subject of much controversy for judges and commentators.

The debate over wrongful life suits involving “impaired” children continues. Courts in Michigan have recently rejected the wrongful life cause of action, while, in Washing ton, the action has been allowed. Some academic critics have also continued to oppose the wrongful life action. In a recent commentary in the pages of this journal, one critic wrote: “Wrongful life actions, by whatever name they may be called, accord with neither logic nor experience, and should not be allowed.”

The “medical malpractice crisis” in the 1970s involved not only a greater number of suits, but also the emergence of new sorts of claims against medical practitioners. One such claim was the wrongful birth suit, where parents sued their physician on their own behalf for negligence that resulted in the birth of an unwanted child. A related claim, wrongful life, involved a suit brought on behalf of a defective infant against a physician or laboratory that failed to give correct information about a potential defect to the parents. These claims have been the subject of much controversy for judges and commentators.

The debate over wrongful life suits involving “impaired” children continues. Courts in Michigan have recently rejected the wrongful life cause of action, while, in Washing ton, the action has been allowed. Some academic critics have also continued to oppose the wrongful life action. In a recent commentary in the pages of this journal, one critic wrote: “Wrongful life actions, by whatever name they may be called, accord with neither logic nor experience, and should not be allowed.”

Recent years have brought increasing pressure from the public and the courts for truly informed patient consents to medical treatment and surgical procedures. Many courts have recognized that a patient's signature on a consent form is no assurance that the patient has received sufficient information, much less that he or she truly understood the information. A Pennsylvania court articulated this principle this way:

Adult protective service systems in many of our states have been subjected to a good deal of public criticism. Much of this denunciation, particularly that emanating from civil libertarians who advocate on behalf of the legal and ethical rights of older citizens, centers on the legal aspects of protective services, and especially on the legal authority of the state to intervene unilaterally in the private life of an unwilling, protesting older individual.

Except in the most compelling of circumstances, society should avoid the coercive elements of protective services. Often overlooked, however, by commentators, policy-makers, and caregivers alike, is that protective services may be, and in the vast majority of instances are, accepted voluntarily (and gratefully) by the older recipient. A mentally competent individual may voluntarily give informed consent in the medical sphere, as well as in others, to the receipt of services that he or she currently needs. Additionally, legal mechanisms frequently enable a competent independent adult to foresee and prepare for the possibility that he or she might become incompetent and dependent, by providing for a substitute decisionmaking process of the individual's own choosing.

Does a hospital bear a responsibility independent of that of the attending physician to ascertain that a patient has given an informed consent? Until recently, state appellate courts have provided a decidedly negative answer to this question. However, in Magana v. Elie, an Illinois appellate court recently adopted a different position, opening the door to a new area of hospital responsibility and, therefore, increased potential liability for hospitals. This column provides a brief review of the informed consent doctrine, discusses the traditional and the Magana approaches to the issue of hospitals‘ responsibility to obtain informed consent, and analyzes the implications, particularly for nurses, should the Magana approach be more widely followed.