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

Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent
determine what shall be done with his own body.? 86 Within
medical malpractice law, the doctrine of informed consent
Patients? Jurors? Doctors? Standardizing a patient?s
hypothetical past decision-making is by no means an exact
attempts to foster and protect informed patient science. No metric, legal or otherwise, is capable of
decision-making. Ideally, informed consent law equips
patients with the information they need to determine the
direction of their medical treatment without compromising
physicians?ability to provide quality care.
Since Canterbury, however, the relationship between
medicine and law has remained more adversarial than
synergistic. In a dramatic tug-of-war that literally rewrote
the state?s informed consent policy, Wisconsin?s courts and
doctors spent decades haggling over the highly contested,
inherently personal territory of what a reasonable patient
needs to know. The Indiana Supreme Court?s refusal to
cast physicians as mind readers in Culbertson v. Mernitz
and Hawaii?s commitment to following the mores of
patient autonomy in Carr v. Strode illustrate the nation?s
split between physician- and patient-centered disclosure
standards? seemingly, a question of whose rationale a
state?s courts should champion.
calculating the degree to which an individual?s medical
choices would have been impacted by a risk unknown to
them at the time.
When the law of informed consent purports to know better
than physicians and patients alike, the doctrine?s original
goal is hindered. In the recent case of EMW Women?s
Surgical Center, P.S.C. v. Beshear (2019), the U.S. Sixth
Circuit Court of Appeals invoked Canterbury to justify
upholding Kentucky?s Ultrasound Informed Consent Act
(H.B. 2), a statute that required doctors to perform and
display an ultrasound, explain the images in their own
words, and play the fetal heartbeat out loud before
obtaining an abortion patient?s consent. 87 Although H.B. 2
mandated disclosing the consequences of abortion for the
fetus? not the patient undergoing the procedure? the Sixth
Circuit nonetheless affirmed the state?s right to compel
physicians? divulgence of medical information deemed
?truthful, non-misleading, and relevant.?
But, is the issue quite so simple? Should it be? Medical
Citing
Canterbury?s assertion that medical custom should not
informed consent is, after all, a two-way street,
dictate the bounds of mandatory disclosure, the court went
encompassing both physicians? disclosure of risk
so far as to deem physicians? qualms with the statute
information and patients? resulting treatment decisions.
irrelevant.
Fain v. Smith rested on whether the divulgence of an
By ?eviscerating physician discretion,?
however, the court precluded physicians from respecting
undisclosed material risk would have caused the
their patients? autonomy, thus undermining the very
patient-plaintiff to withhold consent, thus preventing his
objective of informed consent.
injury. The Alabama Supreme Court endeavored to
Beyond infringing on
physicians?professional expertise? about one-third of the
determine who should be trusted to verify causation:
information that abortion informed consent statutes force
86. Canterbury, 464 F.2d 780 (citing Schloendorff v. Society of New York Hospital (1914)).
87. EMW Women?s Surgical Center, P.S.C. v. Beshear, 920 F.3d 423. (?Under [Roe v. Wade (1973)], a woman has the right to choose to have an
abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to ascultate (or make audible) the
fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.?)
88. Ibid.
89. Ibid., 920 F.3d 444. (?To give the patient more information that is truthful, non-misleading, and relevant to a medical procedure is the epitome of
ensuring informed consent.?)
90. Ibid., 920 F.3d 439. (?If the validity of an informed-consent law depended on whether doctors agreed with the law? or whether the law required
disclosures that, with no law, the doctor would disclose anyway? there would be no need for the law to supplement custom.?)
91. Ibid., 920 F.3d 447 (Donald, B., dissenting). (?Under the prevailing standard of care, informed consent requires respect for the patient?s
autonomy and sensitivity to the patient?s condition. Physician discretion is vital, but H.B. 2 eviscerates physician discretion.?)
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