Informed Consent
Why Do We Care About Informed
Consent?
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"Every human being of adult years and sound
mind has a right to determine what shall be done
with his own body; and a surgeon who performs
an operation without his patient's consent
commits an assault for which he is liable in
damages. "
Schoendorff v. Society of New York Hospital, 211
NY, 105 NE 92, 93 (1914) (Cardozo)
Nuremberg
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What were the Nuremberg trials?
What part of the trials concerned medical care?
What is the Nuremberg Code?
How does it still affect aspects of medical
treatment and research?
 Grimes v. Kennedy Krieger Institute, Inc., 366
Md. 29, 782 A.2d 807 (Md. 2001)
Changing Nature of Medical Care
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Pre-WWII
 Few effective treatments
 Fewer effective alternative treatments
 Lower expectations on medical treatment
Post-WWII
 New drugs, new surgeries
 Beginning of effective alternative treatments
 Choice begins to matter when there are choices
Failure of Consent as Battery
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What are the elements of a battery?
Is it just a civil cause of action?
What type of damages are necessary to recover
for battery?
Advantage of Battery
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Do you need an expert to prove the plaintiff's case
in a battery action?
What is the effect of a battery claim on the jury?
 Consent cases?
 Sexual assault cases?
Problems with Battery
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What is the insurance issue with battery cases?
 How is this complicated by criminal prosecution?
Why does this matter for medical negligence cases?
How does this affect litigation strategy?
How do you transform a battery into a negligence case?
 Sexual assault
 Consent - see the next cases
Moore v. Webb, 345 S.W.2d 239 (Mo.App.
1961)
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Review of case
Timeframe for tort law
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1960s - changing nature of tort law
Restatement of Torts 2nd, 402a
Breakdown on defensive doctrines
Broadening of the recoverable damages
Breakdown of the conspiracy of silence
Increased concern with patient's rights
This is the context for the rise of informed
consent litigation
Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1,
104 Cal. Rptr. 505 (Cal. 1972)
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Review of Case