Public Health Law Map - Beta 5 - Medical and Public Health Law Site

may rationally make their own medical decisions.
a) Technology-Oriented Medicine
b) The Demise of Paternalism
Traditional medical paternalism was based on the importance of faith in the absence
of effective treatments. Physicians occupied a quasi-religious role, providing solace
rather than salvation. With the rise of more invasive medical procedures, more
finely tuned but highly toxic drugs, and more diseases defined by a medical finding
rather than by a patient’s symptoms, the underpinnings of this paternalistic role
deteriorated. Choosing treatments is no longer the simple exercise of diagnosing the
patient’s condition and having that diagnosis determine therapy. A diagnosis now
triggers a universe of possible actions. The selection of a treatment from this
universe becomes a value judgment based on the relative risks and benefits of the
various actions. The risks to be considered include patient-specific psychological
and social risks.
Physicians may be expert in determining the medical risks of a treatment, but it is
only the patient who can determine the relative acceptability of these risks. For
example, some patients will risk substantial disability on a chance of a complete
cure of chronic pain. For others, chronic but bearable pain is preferable to the
chance of disability secondary to treatment. This weighing of risks is idiosyncratic
to the patient’s individual risk-taking behavior and cannot be predicted by a
physician. Following the paternalistic model, physicians assumed the task of
making these risk– benefit decisions for the patients. Problems arose as patients
began to question the consequences of these decisions. Once patients realized that
there might be more than one way to treat their conditions, they began to question
the physician’s authority to make unilateral treatment decisions.
c) Changing Values
Patients expressed their dissatisfaction with paternalism through lawsuits. In a small
number of cases in the 1960s and early 1970s, physicians were sued for obtaining
consent without informing patients of the risks of the proposed treatments. In
almost every one of these cases, the failure to inform the patient properly was only
one facet of substandard care. A few courts held that a patient was entitled to be
informed of the risks of treatment as part of the consent process. These opinions
were seized upon by legal scholars, who then fashioned the theory of informed
consent to medical care.
As more courts began to recognize a patient’s legal right to be informed about the
risks of treatment, this was transformed into an individual liberties issue. Physicians
who did not inform patients adequately have been accused of oppressing their
patients. This legal view of informed consent as a liberty issue created a bitter
dispute over the role of the physician. Physicians felt that their integrity was
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