Medical Malpractice: a Subjective Approach to Informed Consent in Oklahoma

Tulsa Law Review Volume 15 Issue 3 Energy Symposium Spring 1980 Medical Malpractice: A Subjective Approach to Informed Consent in Oklahoma Karen Ivy Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Karen Ivy, Medical Malpractice: A Subjective Approach to Informed Consent in Oklahoma, 15 Tulsa L. J. 665 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol15/iss3/13 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Ivy: Medical Malpractice: A Subjective Approach to Informed Consent in RECENT DEVELOPMENT MEDICAL MALPRACTICE: A SUBJECTIVE APPROACH TO INFORMED CONSENT IN OKLAHOMA. Scott v. Bradford, 606 P.2d 554 (Okla. 1979). I. INTRODUCTION In the recent decision of Scott v. Bradford,' the Oklahoma Supreme Court officially2 adopted the doctrine of informed consent in medical malpractice suits. This doctrine imposes a duty on a physician or surgeon to inform the patient about what is to be done during treatment or surgery, the risks involved, and any alternatives to the contem- plated treatment. In a marked departure from the majority of jurisdictions which have adopted the informed consent doctrine, however, the court declined to impose an objective standard of whether a "reasonable patient" would have declined the proposed treatment if he had been adequately informed of all the material risks.3 Instead, the court explicitly stated, becoming one of the first courts to do so,4 that 1. 606 P.2d 554 (Okla. 1979). 2. In Martin v. Stratton, 515 P.2d 1366 (Okla. 1973), the Oklahoma Supreme Court implicitly approved the doctrine of informed consent and stated its basic principles, but left its adoption to a later time. See Lambert v. Park, 597 F.2d 236 (10th Cir. 1979), where the federal court held, in a diversity case, that informed consent is a part of Oklahoma law. 3. This particular aspect of the informed consent doctrine is an issue of causation, i e., a causal connection between the nondisclosure of the required information and the injury sustained by the plaintiff. Most courts have failed to address the problem of whether causation is to be found by reference to an objective, reasonable man standard or to a subjective, "particular patient" standard. See Meisel, The Expansion ofLiabilityfor MedicalAccidents: From Negligence to Strict Liability by Way of Informed Consent, 56 NEB. L. REy. 51, 108-09 (1977). Most jurisdictions, however, have adopted an objective test on the issue of causation. Id. at 109. See also Note, Who's Afraid of Informed Consent? An Affirmative Approach to the MedicalMalpractice Crisis, 44 BROOKLYN L. RE. 241,263 (1978); Note, Informed Consent Liability, 26 DRAKE L. REV. 696, 706 (1977). A minority ofjurisdictions implicitly adhere to a subjective approach, although they are seemingly unaware that the issue of causation has been raised. Meisel, supra, at 108 n.161. See Poulin v. Zartman, 542 P.2d.251, 275 (Alaska 1975); Beauvais v. Notre Dame Hosp., 387 A.2d 689, 691 (R.I. 1978); Wilkinson v. Vesey, 110 R.I. 606, _ 295 A.2d 676, 690 (1972); Jacobs v. Theimer, 519 S.W.2d 846, 848 (Tex. 1975); ZeBarth v. Swedish Hosp. Medical Center, 81 Wash. 2d 12, -_, 499 P.2d 1, 11 (1972). 4. See note 3 supra. Published by TU Law Digital Commons, 1979 1 Tulsa Law Review, Vol. 15 [1979], Iss. 3, Art. 13 TULSA LAW JOURNAL [Vol. 15:665 the standard to be applied is a subjective one, that is, whether that particular patient would still have consented to the treatment, reasonable choice or otherwise.5 This note will briefly discuss the history and development of the law of informed consent, the current status of the law, the Scott decision, and the implications of the use of a subjective standard for the issue of causation. II. DEVELOPMENT OF THE LAW OF INFORMED CONSENT The doctrine of informed consent is founded upon the idea that each individual has the right to determine what is to be done to his person6 and originally developed out of the traditional tort of battery.7 [I]t is easy to understahd why assault and battery principles were assimilated into the law of physician-patient relation- ships when no other adequate theory of recovery then existed: the protected interest would be jeopardized if the individual's absolute right to be free from unwanted procedures on his body were made to depend on the subjective intentions or motivations of the physician.' Battery would be an appropriate cause of action where the patient alleges either that he did not consent to the treatment rendered or that his consent was ineffective because the physician did not inform him of what would be done in the course of treatment. Where, however, the patient alleges that his consent was vitiated by the doctor's failure to disclose to him the risks of the proposed procedure or the available alternatives, his cause of action is in negligence, not battery.9 5. The court recognized that the use of an objective standard jeopardizes the patient's right of self-determination and specifically rejected that approach. 606 P.2d at 559. 6. Id. at 556. One-half century ago, Justice Cardozo, in the oft-cited case of Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914), made the following observation: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." Id. at 129-30, 105 N.E. at 93. An even earlier case involving consent to medical treatment was an Oklahoma case, Rolater v. Strain, 390 Okla. 572, 137 P. 96 (1913). In Rolater, the patient agreed to an operation on her toe, but expressly advised the physician not to remove any bones. During the course of the operation, the physician re- moved a sesamoid bone. The court held that the removal of the bone was unlawful and consti- tuted a technical assault and battery. 7. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 18, at 102-06 (4th ed. 1971). See also Rolater v. Strain, 390 Okla. 572, 137 P. 96 (1913). 8. Comment, New Trends in Informed Consent? 54 NEB. L. REv. 66, 68 (1975). 9. Comment, The Evolution of the Doctrine ofInformed Consent, 12 GA. L. REV. 581, 582 (1978). There is no unanimity as to the theory of recovery which a plaintiff must adopt when his suit alleges a failure by a physician to adequately disclose the risks and alternatives of a proposed procedure. Some courts have held that any treatment given without informing the patient of its https://digitalcommons.law.utulsa.edu/tlr/vol15/iss3/13 2 Ivy: Medical Malpractice: A Subjective Approach to Informed Consent in 1980] RECENT DEVELOPMENT Thus, the physician may be held liable for his actions where, even though he obtained consent to treatment, he has not informed the patient of risks and alternatives of that treatment. 10 This is true regard- less of the due care the physician utilized during the procedure, assuming there is injury resulting."I This theory, which today is known as the doctrine of informed consent, imposes a duty upon a physician separate from his responsibilities to skillfully diagnose and treat the patient's ills.' 2 This new awareness of patients' informational needs was influenced by the simultaneous growth of product liability and consumer law.13 What the doctrine of informed consent sought to add to the physician's standard of care is the proposition that physicians are under an affirmative duty to offer to acquaint patients with the impor- tant risks and plausible alternatives to the proposed procedure. Pro- ceeding from the law of battery, the courts reasoned that significant protection of a patient's right to decide his medical fate required not merely perfunctory assent but a truly "informed consent," based on an adequate understanding of the medical alternatives available to him. Failure to obtain such consent is negligence.' 4 inherent risks vitiates the consent and allows suit based upon a battery theory. See., e.g., Bang v. Charles T. Miller Hosp., 251 Minn. 427, 88 N.W.2d 186 (1958); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Most jurisdictions, classify the physician's duty as a question of negligence because of the absence of the elements of any willful intent by the physician to harm the patient. See Mallett v. Pirkey, 171 Colo. 271, 466 P.2d 466 (1970); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960), claried,187 Kan. 186, 354 P.2d 670 (1960); Downer v. Veilleux, 322 A.2d 82 (Me. 1974). 10. 606 P.2d at 557. 11. Id. See Plante, An Analysis of "Informed Consent," 36 FORDHAM L. REV. 639, 657-58 (1968). 12. See, e.g., Martin v. Stratton, 515 P.2d 1366, 1369 (Okla. 1973); Wilkinson v. Vesey, 110 R.I. 606,_. 295 A.2d 676, 685 (1972). "This requirement. .. is, legally speaking, as essential as a physician's care and skill in the performance of the therapy. 606 P.2d at 557 (emphasis in origi- nal). 13. Katz, Informed Consent-A Fairy Tale? Law's Vision, 39 U.

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