The Ever-Changing Landscape of Informed Consent and Whether the Obligation to Explain a Procedure to the Patient May Be Delegated
Samuel D. Hodge, Maria Zambrano Steinhaus
Arkansas Law Review, January 2019; 71(3)
Informed consent is an integral part of the shared decision making process and requires a patient be informed of the benefits, risks and alternatives to a medical procedure. This information, which requirement has been codified into the law and practice of every healthcare provider, helps a patient decide whether to proceed with the recommended treatment plan. Informed consent has its foundation in the ethical notion of patient autonomy and fundamental human rights. After all, it is the patient’s decision to determine what may be done to his or her body and to ascertain the risks and benefits before undertaking a procedure. On the other hand, a physician’s role is to act as a facilitator in the patient’s decision making process by providing information about the planned treatment and to answer questions. While the roles of the patient and physician seem clearly defined, a number of barriers present challenges in creating a process that guarantees a patient understands a test or procedure. This includes ineffective communication between the doctor and patient. The first part of this article will explore the liability of various health care providers who participate in the informed consent process, such as the physician, nurse, physician assistant and hospital. The second section will examine whether the treating physician may delegate the duty to explain the risks and alternatives of a procedure to another. The controversial decision of Shinal v. Toms, which mandates that the doctor must have a one-on–one exchange with the patient in order to secure a valid informed consent, will also be explored. This recent ruling has sent shock waves throughout the medical community causing a reexamination of their informed consent policies.
Editor’s Note: Information on the Shinal v. Toms case can be found here