Informed Consent

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Informed Consent
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Why Do We Care About Informed Consent?

• "Every human being of adult years and sound mind
  has a right to determine what shall be done with
  his own body and a surgeon who performs an
  operation without his patient's consent commits
  an assault for which he is liable in damages. "
• Schoendorff v. Society of New York Hospital, 211
  NY, 105 NE 92, 93 (1914) (Cardozo)

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Nuremberg

• What were the Nuremberg trials?
• What part of the trials concerned medical care?
• What is the Nuremberg Code?
• How does it still affect aspects of medical
  treatment and research?
• Grimes v. Kennedy Krieger Institute, Inc., 366
  Md. 29, 782 A.2d 807 (Md. 2001)

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Changing Nature of Medical Care

• Pre-WWII
• Few effective treatments
• Fewer effective alternative treatments
• Lower expectations on medical treatment
• Post-WWII
• New drugs, new surgeries
• Beginning of effective alternative treatments
• Choice begins to matter when there are choices

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Failure of Consent as Battery

• What are the elements of a battery?
• Is it just a civil cause of action?
• What type of damages are necessary to recover for
  battery?

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Advantage of Battery

• Do you need an expert to prove the plaintiff's
  case in a battery action?
• What is the effect of a battery claim on the
  jury?
• Consent cases?
• Sexual assault cases?

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Problems with Battery

• What is the insurance issue with battery cases?
• How is this complicated by criminal prosecution?
• Why does this matter for medical negligence
  cases?
• How does this affect litigation strategy?
• How do you transform a battery into a negligence
  case?
• Sexual assault
• Consent - see the next cases

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Moore v. Webb, 345 S.W.2d 239 (Mo.App. 1961)

• Review of case

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Timeframe for tort law

• 1960s - changing nature of tort law
• Restatement of Torts 2nd, 402a
• Breakdown on defensive doctrines
• Broadening of the recoverable damages
• Breakdown of the conspiracy of silence
• Increased concern with patient's rights
• This is the context for the rise of informed
  consent litigation

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Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104
Cal. Rptr. 505 (Cal. 1972)

• Review of Case