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Must Physicians Reveal Their Wounds?

Published online by Cambridge University Press:  29 July 2009

Barry R. Furrow
Barry R. Furrow
Affiliation:
A professor of Law at the Widener University School of Law, and Director of its Health Law Institute. Professor Furrow is a member of the editorial board of the Journal of Law, Medicine & Ethics, and a regular peer reviewer for the Journal of the American Medical Association and the Journal of Health Policy.
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Extract

The physician–patient relationship is anchored in trust. Historically the relationship has been a paternalistic one, with the patient expected to trust the physician's training and skills in doing what is “best” for the patient. But medical knowledge has expanded, as have treatment options and knowledge of the risks of treatment. The physician must now possess volumes of specialized knowledge about procedures and treatments, side effects and alternatives, drugs and their contraindications. Information has become a companion to trust. The patient, while still dependent on the physician's expertise, now wants information about choices and hazards in treatment. Expanded choice has made the patient a consumer of healthcare and its risks rather than a passive recipient of treatment from the professional.

Type
Special Section: Issues in Consent
Information
Cambridge Quarterly of Healthcare Ethics , Volume 5 , Issue 2 , Spring 1996 , pp. 204 - 213
Copyright
Copyright © Cambridge University Press 1996

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References

Notes

1. Salgo v. Stanford University Board of Trustees. 317 P.2d 170 (Cal. Ct. App. 1957).

2. See Smith v. Weaver. 407 N.W. 2d 174 (Neb. 1987). State statutes enacted during bursts of tort reform activity in the states often imposed the professional disclosure standard upon the courts, over their objection in some cases. See for example, Eccleston v. Chait. 492 N.W. 2d 860 (Neb. 1992).

3. Woolley v. Henderson. 418 A.2d 1123 (Me. 1980).

4. Furrow, BR, Greaney, TL, Johnson, SH, Jost, T, Schwartz, RLHealth Law, Vol I. New York: West Publishing Co., 1995:412.Google Scholar

5. Canterbury v Spence. 464 F.2d 772 (D.C. Cir. 1972).

6. See, for example, Fain v. Smith. 479 So. 2d 1150 (Ala. 1985).

7. See, for example, Ala. Code §6–5–484. 1990.

8. Korman v. Mallin. 858 P.2d 1145 (Alaska 1993) (adopting what the court finds to be the “modern trend”).

9. Wheeldon v. Madison. 374 N.W.2d 367, 375 (S.D. 1985).

10. See, for example, Bourgeois v. McDonald. 622 So. 2d 684 (La. Ct. App. 1993).

11. Steele v. St. Paul Fire & Marine Ins. 371 So. 2d 843 (La. Ct. App. 1979).

12. Harbeson v. Parke-Davis. 746 F.2d 517 (9th Cir. 1984).

13. Shinn v. St. James Mercy Hosp. 675 F. Supp. 94 (W.D.N.Y. 1987).

14. See generally Kissinger v. Lofgren. 836 F.2d 678, 681 (1st Cir. 1988) (risks of infection from operations should be known to every patient).

15. Cunningham v. Charles Pfizer & Co. 532 P.2d 1377,1381 (Okla. 1974) (duty to disclose “even though the chances of the adverse reaction occurring are statistically small”).

16. Canterbury v. Spence. 464 F.2d 772, 789 n. 85 (D.C. Cir. 1972).

17. Fischer v. Wilmington Gen. Hosp. 149 A.2d 749 (Del. 1959) (no need to disclose small risk of hepatitis infection from blood transfusion).

18. Cobbs v. Grant. 502 P.2d 1 (Cal. 1972) (disclosure of risk of death is necessary); Cooper v. Roberts. 286 A.2d 647 (Pa. Super. Ct. 1971) (1 in 2,500 risk of stomach puncture during gastroscopic examination is material).

19. See note 4. Furrow, et al. 1985:416–7.Google Scholar

20. Hartke v. McKelway. 707 F.2d 1544, 1549 (D.C. Cir. 1983).

21. See note 20. Hartke v. McKelway. 1983:1549.Google Scholar

22. Korman v. Mallin. 858 P.2d 1145 (Alaska 1993).

23. Distefano v. Bell. 544 So. 2d 567 (La. App. 1989) (duty expanded when patient asked about least likely complications).

24. See generally Rheingold, PD. The admissibility of evidence in malpractice cases: the performance records of practitioners. Brooklyn Law Review 1992;58:75, 80. “It does seem inescapable … that part of the information about risks would be what the doctor's own experience has been, even if all risks are lumped together.”Google Scholar

25. Hales v. Pittman. 576 P. 2d 493 (Ariz. 1978) (discussing the battery count of the plaintiff's complaint).

26. See generally Twerksi, AD, Cohen, NB. Comparing medical providers: a first look at the new era of medical statistics. Brooklyn Law Review 1992;58:12–3. (as statistical validity of data is established, it will become part of litigation).Google Scholar

27. Brzoska v. Olson. 1995 WL 558413 (S.C. Dela. 1995).

28. Behringer v. The Medical Center. 592 A.2d 1251 (N.J. Super. Ct. Law Div. 1991).

29. See, for example, Gostin, L. Hospitals, health care professionals, and AIDS: the “right to know” the health status of professionals and patients. Maryland Law Review 1989;48:12.Google Scholar

30. The court observed that the actual risk of transmission is small, in the range of 1 in 130,000 to 1 in 4,500. But it also found that the cumulative risk to surgical patients would be much higher.

31. See note 28. Behringer v. The Medical Center. 1991:1278.

32. See note 28. Behringer v. The Medical Center. 1991:1280.

33. See note 28. Behringer v. The Medical Center. 1991: 1280.

34. Keyes, GG. Health care professionals with AIDS: the risk of transmission balanced against the interests of professionals and institutions. Journal of College and University Law 1990;16:589, 603.Google ScholarPubMed

35. See note 34. Keyes, . 1990;16:658.Google Scholar

36. Olson, , Howard-Martin, . Controversy brews over guidelines for AIDS-infected health care workers. Health-Span 1991;8:13–5.Google Scholar

37. See note 36. Olson, , Howard-Martin, . 1991;8:13–5.Google Scholar

38. See also Faya v. Almaraz. 620 A.2d 327 (Md. Ct. App. 1993), where the court held that the jury should be allowed to evaluate the conduct of a surgeon with AIDS, to determine if he owed patients a duty of disclosure of his AIDS status. The court based its analysis of duty upon foreseeability of the risk, concluding that a finding of unreasonable risk depends on a balance of probability and seriousness of harm, against the availability of precautions. The court could not say as a matter of law that the doctor owed no duty to the plaintiff in light of this balance, and reinstated the plaintiffs' complaints.

39. See Copithorne v. Framingham Union Hosp. 520 N.E. 2d 139 (Mass. 1988).

40. Hidding v. Williams. 578 So. 2d 1192 (La. Ct. App. 1991).

41. Ornelas v. Fry. 727 P.2d 819 (Ariz. Ct. App. 1986). The court refused to allow evidence as to alcoholism of the anesthesiologist as a separate claim of negligence, absent a showing that the physician was impaired at the time of the procedure.

42. A sophisticated analysis of these issues is provided by Norman, Daniels in HIV-infected health care professionals: public threat or public sacrifice? Milbank Quarterly 1992;70:3.Google Scholar

43. Glantz, LH et al. , Risky business: setting public health policy for HIV-infected health care professionals. Milbank Quarterly 1992;43:72–3.Google Scholar

44. Barnes, M et al. , The HIV-infected health care professional: employment policies and public health. Law, Medicine, & Health Care 1990;18:311, 324.CrossRefGoogle ScholarPubMed