Who is Obligated to do the Disclosing?

In the case of Schloendorff v. The Society of the New York Hospital (105 N.E. 92) 1914, a doctor removed a tumor when the patient had only consented to a diagnostic procedure. The court determined that every human of adult years and sound mind has a right to determine what shall be done with their own body and that a surgeon who performs an operation without their patient's consent is guilty of committing an assault on the patient.

The policy of obtaining informed consent from a patient is based on the principle of ethics. The rationale is that all medical patients should both understand, and agree to, the type of medical care that they will be receiving. It simply is not ethical for a patient to agree to treatment that could greatly impact their health without being provided all known information from which to base their decision.

When it comes to informed consent, the obligation to disclose falls on the patient's treating physician. Other medical staff that may have come into contact with the patient – nurses, assistants, referring physicians – do not have a duty to disclose because they are not the ones that will actually either be performing the procedure or administering the treatment. Further, the treating physician is usually the only person that truly knows all of the risks and benefits associated with the treatment or procedure they are recommending.

Therefore, because informed consent is considered to be the process of communication between the treating physician and the patient, the conversation needs to be held between the two. In fact, the court in Perna v Pirozz, 92 N.J. 446,457 A.2d 431, New Jersey, 1983, found that if the patient agrees to a surgery with one physician, another physician is not able to substitute into the exact same procedure without the patient's consent. If the originally approved physician does not perform the surgery but the surgery takes place regardless, the original physician is subject to malpractice.

While it is the treating physician's responsibility to make the requisite disclosures to the patient in order to obtain informed consent from the patient, it is possible for nurses or other medical personnel to be held liable if informed consent is not properly obtained prior to the administering of treatment or the conducting of a procedure.

For example, nurses may be held liable if they know or should have known that the treating physician did not obtain informed consent and the nurse decided not to bring the issue to the attention of the physician or other medical personnel.

While it is the treating physician's responsibility to disclose the requisite information to the patient, it is sometimes confusing as to what information is required to be shared. However, this was solved in the case of Canterbury v. Spence, 409 U.S. 1064 93 S. Ct. 560 34 L. Ed. 2d 518 1972 U.S. There, the court found that a physician must disclose (1) condition being treated; (2) nature and character of the proposed treatment or surgical procedure; (3) anticipated results; (4) recognized possible alternative forms of treatment; and (5) recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment.

While it is the treating physician that must disclose the requisite information to the patient, Natanson v. Kline, 350 P2d 1093, Kansas, 1960 found that it is the patient, and no one else, that must make the final decision as to whether or not they would like to go forward with the plan that the treating physician has put forth. “A man is the master of his own body and he may expressively prohibit the performance of life-saving surgery or other treatment."

Legally, it is never too late for a patient to change their mind about a procedure or treatment (unless a surgery was consented to and the procedure has already been completed). A patient can legally change their mind at any time, even if they have already started treatment. Most consent forms state that a patient has the right to stop treatment even after signing the consent form. If the patient has changed their mind, they must contact the treating physician as soon as possible.

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