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INFORMED CONSENT

The traditional view of informed consent is that it is a relatively recent judicial creation:

Informed consent litigation began in 1957 with the California appelate decision in Salgo vs. Leland Stanford, Jr., University Board of Trustees. There the court appeared to recognize for the first time that a physician might be held liable for failure to disclose important information beyond the ancient requirement for revealing the nature of the procedure.

(The ancient requirement that Professor Katz alludes to is the "bare bones" consent discussed in reference to lawsuits based upon the battery theory.)

Unlike battery, the tort of failure of informed consent is not an intentional tort. The health care-provider has obtained a "bare bones" consent, but the patient alleges that the provider was negligent in not giving the patient a sufficiently detailed explanation of the proposed therapy. This has been taken by many legal scholars and health care providers to mean that a patient could sue a health care provider for not providing enough information. However, a careful analysis of the cases that have been litigated under an informed consent theory reveals a different situation.

 



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