Saturday, January 19, 2008

The End for the Claim of Lack of Informed Consent

Thanks to Prof. Childs for inspiring this post by his arguing against this idea. Access to the internet is universal. It contains all the information published about medical treatments in use. The reasonable person in treatment now has an affirmative duty to research all treatments on the internet. The courts will start to recognize the obvious.

The physician has superior knowledge from experience in other patients of unreported, new adverse events from a treatment.

If an adverse effect has been listed in the package insert, the patient's knowledge is superior. If he does not know a medical term, medical dictionaries are available on line, for free. The patient not only knows the bad effect from the internet. He has a minute by minute knowledge of its effect on him, all day, every day. This knowledge also relates to a duty to mitigate harm.

The family's knowledge of the adverse effect and their failure to act is an intervening unforeseen cause that increases risk, with a superiority laying between the knowledge of the patient and of the doctor. If the plaintiff is a child, then the family has a statutory duty to protect the plaintiff. They have an affirmative duty to mitigate harm to a minor child.

The doctor sees him a few minutes, every so often, and has the least real world knowledge of any party.


Throckmorton said...

I love this post and agree wholeheartedly. The whole issue of informed consent is both confusing and frustrating for me. There is so much information available on the internet and libraries that it is hard to believe that someone can't gat all knowledge they need to make a good decision. Unfortunately, this means that it is up to them. As our courts show, personally responsibility means nothing as long as you can blame someone else. Just as a quick aside, I am amazed at how many patients are seen for a severe medical condition that only requires a generic 3 dollar prescription who never go and get it. You can lead a horse to water but you cant make him drink but in our courts, the horse can sue you for not drinking.

Supremacy Claus said...

Dr. T: As defendants, docs should tell the defense attorney to raise this objection. The attorney should invite the judge to verify this effect personally.

Once the first appellate case supports the objection, other courts will adopt it.

What is the worst that a judge can do, refuse to do so?

Then bring it up during testimony, and again with the jury. Most jurors will have a lot of experience doing exactly the same thing.