Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent
no treatment at all]?). 10 11 Departing from precedent, the
appeals court determined that doctors cannot be legally
entrusted with judging the scope of adequate disclosure;
such discernment should be left to the courts. 12 Suggesting
certain degree of ambiguity. The Canterbury court adopted
the novel ?lens of reasonableness, rather than custom? to
determine the materiality of a given risk, delineate
physicians? duty to disclose, and assess the validity of
that physicians may fail to align their professional informed consent claims. 16 17 However, assessing
standards with patient interests, the appeals court declared,
?Respect for the patient?s right of self-determination on
particular therapy demands a standard set by law for
physicians rather than one which physicians may or may
not impose upon themselves.? 13
reasonableness? let alone standardizing it? has proven a
challenging science. After all, individuals? responses to,
and interest in, the disclosure of specific risks may vary
dramatically? posing the question: Is it possible to
generalize the decision-making process of a mythical
At the same time, not every doctor?s failure to inform
?reasonable? patient? Even the Canterbury court
could result in an informed consent claim. Besides
demonstrating that their physician failed to disclose a
procedure?s material risk, plaintiffs must also prove that a
?reasonable patient [made aware of the risk] would more
likely than not have opted not to undergo the procedure,?
acknowledged the delicate task of applying the standard in
practice, stating, ?There is no bright line separating the
significant from the insignificant; the answer in any case
must abide by a rule of reason.? 18
Courts across the United States have since struggled to
and that the undisclosed risk caused them to suffer a pinpoint the boundaries of reasonable disclosure.
compensable injury. 14 Furthermore, according to Wisconsin?s state courts interpreted Canterbury to justify
Canterbury, physicians are exempt from their duty to
obtain informed consent in emergencies when the patient is
the adoption of an unusually expansive disclosure doctrine,
leading state physician groups to protest against the
?unconscious or otherwise incapable of consenting,? as harmful impacts of defensive medicine. 19 While
well as in situations where risk disclosure would threaten
the patient?s well-being. 15
Yet, the very notion of informed consent is imbued with a
Canterbury has led some states to judge informed consent
cases foremost according to the expectations of a
reasonable patient? a standard that tends to favor plaintiffs
10. Marc D. Ginsberg, ?Beyond Canterbury: Can Medicine and Law Agree about Informed Consent? And Does It Matter?? The Journal of Law,
Medicine & Ethics 45, no.1 (March 2017): 109.
11. Bobinski, 618.
12.Canterbury, 464 F.2d 786. (?The duty to disclose, we have reasoned, arises from phenomena apart from medical custom and practice. The latter,
we think, should no more establish the scope of the duty than its existence.?)
13. Ibid., 464 F.2d 780, 784.
14.Nadia N. Sawicki, ?Modernizing Informed Consent: Expanding the Boundaries of Materiality,? University of Illinois Law Review, (2016):, 8?9.
15.Canterbury, 464 F.2d 788. (?Two exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician?s
privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but a recognition that, as important as is the patient?s right
to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege? ?)
16.Bobinski, 617.
17. Canterbury, 464 F.2d 785. (?We hold that the standard measuring performance of that [duty to disclose] by physicians, as by others, is conduct
which is reasonable under the circumstances.?)
18.Canterbury v. Spence, 464 F.2d 787.
19.Marc D. Ginsberg, ?Informed Consent and The Differential Diagnosis: How the Law Overestimates Patient Autonomy and Compromises Health
Care,? Wayne Law Review 60 (2015): 371?72.
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