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

Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent
years prior to Canterbury, in Nishi v. Hartwell (1970), the
supreme court validated informed consent as a tort cause
of action yet affirmed a trial court?s dismissal of the case
because Plaintiff Nishi had failed to ?adduce expert
concept of what a patient needs to hear is an insufficient
metric by which to determine an individual patient?s
informational needs. 75 While expert testimony would still
be required to demonstrate the materiality of medical risk,
medical testimony? to prove the inadequacy of following Carr v. Strode Hawaiian courts no longer invited
physician-Defendant Dr. Hartwell?s disclosure. 72 Faced
with a similar case in Carr v. Strode, however, Hawaii?s
Supreme Court embraced Canterbury to overrule the
state?s informed consent precedent, contrasting Indiana?s
stubborn rejection of the patient standard that Canterbury
medical professionals to establish the scope of reasonable
disclosure on their patients?behalf.
Alabama?s case of Fain v. Smith (1985) illuminates the
challenge of legally defining not only reasonable
disclosure, but reasonable consent on the patient?s
sought to advance. Despite their pre-Canterbury
behalf? particularly in the wake of a distressing medical
application of the reasonable physician standard in Nishi v.
Hartwell, Hawaii?s Supreme Court reversed the circuit
court judge?s JNOV in Carr v. Strode and remanded the
case for a new trial on the issue of informed consent, citing
Canterbury?s reasoning as well as a ?growing nationwide
trend [reflected in Hawaii?s lower court decisions] favoring
the patient-oriented standard.? 73
In their comparison of the physician- and patient-oriented
standards, the Carr court opined that both ?seek to achieve
the same goal? of ?[ensuring] informed and intelligent?
patient decision-making. 74 Ideally, the scope of disclosure
dictated by each standard would align in keeping with this
shared aim. Still, acknowledging the significant difference
between the two means of judging physicians?conduct, the
court explained its choice to adopt the patient standard in
Carr v. Strode by arguing that the medical community?s
mistake. The Alabama Supreme Court heard the appeal of
Plaintiff Duncan Fain, whose heart was erroneously
punctured during a pulmonary arteriogram. After Fain?s
informed consent case against physician-Defendant Dr. R.
T. Smith was decided in Dr. Smith?s favor by a district
court jury, on appeal Fain held that the jury had applied the
wrong standard to assess proximate causation. 76 While
Fain and Dr. Smith concurred that the risk of heart
puncture should have been disclosed prior to the
procedure, the two parties disputed whether Dr. Smith?s
inadequate disclosure actually caused Fain?s injury: If Fain
had been properly informed, would it have altered his
decision to undergo the diagnostic test? Fain argued that
the district court should have employed the subjective
standard, by which the plaintiff?s own testimony
constitutes sufficient proof that ?he would not have
72. Ibid., 904 P.2d 494. (?Because Nishi had failed to adduce expert medical testimony regarding what physicians in the community disclosed to
their patients regarding the particular medical procedure, we affirmed the trial court?s dismissal of Nishi?s complain, and by so holding, adopted the
?physician-oriented?standard of disclosure for actions based on the doctrine of informed consent.?)
73. Ibid., 904 P.2d 499.
74. Carr v. Strode, 904 P.2d 498. (?Both standards, therefore, tempered by objectivity, seek to achieve the same goal, that is, to ensure that the
patient?s decision to undergo a particular medical procedure is an informed and intelligent decision.?)
75. Ibid., 904 P.2d 499. (?Moreover, not only should the patient?s decision remain at the forefront when assessing the physician?s disclosure to his or
her patient in each case, but we also believe that, barring situations where the therapeutic privilege exception to the physician?s duty to disclose is
applicable, what the medical community believes the patient needs to hear in order for the patient to make an informed decision is insufficient,
without more, to resolve the question of what an individual patient reasonably needs to hear in order for that patient to make an informed and
intelligent choice regarding the proposed medical treatment.?)
76. Fain v. Smith, 479 So. 2d 1154. (?Plaintiffs contend in brief that the objective standard does away with consideration by the jury of the patient?s
testimony concerning his thoughts.?)
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