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

performed but medically unnecessary procedures. The extreme cases are those that
involve vanity procedures, such as facelifts, liposuction, and breast enhancements.
These procedures pose an informed consent dilemma. As medically unnecessary
procedures, they may be rejected in the same way that skydiving may be rejected.
From this perspective, a physician should be allowed to require a patient to assume
all the risks of a vanity procedure, including the risks of negligent treatment.
A more moralistic perspective is that it is improper for physicians to use their skills
and position of respect to perform purely commercial treatments. This attitude
would view the vanity surgery patient as a victim who should not bear the risks of
the physician’s greed. This would lead to the rejection of assumption of risk for all
risks, leaving vanity surgeons as guarantors of a good result.
Jurors tend toward the moralistic view. Although they are constrained to accept a
proper informed consent, they are very suspicious of the motives of vanity
surgeons. If the consent has any ambiguities or if there is evidence of overreaching
(such as aggressive advertising that implies that the risks are minimal and the
benefits fantastic), then they tend to rule against the physician.
5. Duty to Inform of HIV
Traditionally there have not been informed consent cases predicated on the physician
failing to warn the patient about personal risks the physician might expose the patient
to. These could include infection with hepatitis b, Parkinson’s disease in a surgeon,
or other mental or physical impairments that interfere with the physician’s abilities.
The presumption was that a physician who had a condition that might injure a patient
should refrain from putting patients at risk, and if the physician did injure the patient,
it would be malpractice, rather than informed consent. (There are few reported cases,
probably because if the disability and its adverse impact on the patient could be
proven, the case would be settled.)
a) Professional Standard
This has changed with HIV infection. Medical professionals have decided that
physicians with HIV only pose a risk to patients in very limited circumstances, such
as invasive procedures. Even in those situations, many experts believe that the
physician can take various precautions and not subject the patient to risk. Since
these experts believe that there is little risk, they do not believe physicians have a
duty to disclose their HIV status. Most physicians agree, but more because of the
fairness issue: many state laws make it very difficult for a physician to determine if
a patient is infected with HIV. It seems unjust to make the physician disclose, with
the potential of professional ruin, when the patient, who, in most circumstances,
poses a much greater risk to the physician than the physician does to the patient,
can withhold the information.
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