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) Reasonable-Patient Standard
This analysis would be valid in states that judge informed consent by the
community standard. Unfortunately, it is not sound in states with a reasonable-
person standard. Patients are terrified of being exposed to HIV. They believe that
any reasonable patient would want to know that their physician was infected, at
least if the physician was performing any procedures that could put the patient at
any risk of HIV transmission. This is mirrored by huge judgments in the few
decisions involving persons who were infected with HIV in medical settings: a jury
awarded $12.2 million to a doctor who was infected with HIV as an intern,
allegedly because she had not been properly trained to handle sharps.
There have been two cases decided so far on the specific issue of whether a
physician should inform the patient of the risk of HIV. [Faya v. Almaraz, 438, 620
A.2d 327 (1993), and Doe v. Noe, 690 N.E.2d 1012 (Ill. App. 1 Dist. 1997).]
Neither patient become infected with HIV. In a traditional informed consent case,
this would be a complete defense: the patient must prove that he or she suffered the
complication that the physician failed to provide information about. The patients
pled that they suffered emotional distress because they were exposed to the risk of
HIV transmission and should be allowed to recover for that distress irrespective of
whether they were infected. The judges accepted this theory because of the latency
between HIV infection and the time when HIV tests can confidently rule out
infection is estimated to be about six months. (Although polymerase chain reaction
[PCR] testing might shorten this, it will be difficult to prove to the courts that it
detects all infections in their earliest stages.) The damages were limited to the
interval between the exposure and the final determination that there was no
transmission. In one case there was also a claim against the hospital, which the
judge allowed to stand. 12
6. The Medical Value of Informed Consent
The informed consent document, carefully filed in the patient’s medical records, has
only legal value. It is the process of obtaining the informed consent that is medically
valuable. Obtaining an informed consent should be seen as a quality control review
of the patient’s care. A proper informed consent must deal with the key elements in
medical decision making: the patient’s physical condition, the patient’s subjective
complaints and expectations, and the appropriateness of a proposed treatment.
Few patients are sophisticated medical care consumers. They lack technical
knowledge about medicine, and it is difficult for them to be objective about their
health. Despite a physician’s best efforts, questioning about medical history
sometimes leads to an incorrect assessment of the patient’s condition. This may arise
because the patient misstates the severity of the condition, either denying or
overstating its seriousness, or because the physician unconsciously directs the
patient’s answers toward the medical conditions that the physician is most interested
in. Irrespective of how these misunderstandings arise, they dangerously distort the
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