Feldman, Lynch and Joffe, ‘Informed Consent and the Role of the Treating Physician’

Abstract
In the century since Justice Benjamin N Cardozo famously declared that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body’, informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is – or ought to be – responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v Toms, a recent Pennsylvania Supreme Court case, demonstrates the dangers of a narrow, rigid approach to consent.

Feldman, Eric A and Lynch, Holly Fernandez and Joffe, Steven, Informed Consent and the Role of the Treating Physician (June 21, 2018). New England Journal of Medicine, volume 378(25), page 2433, June 21, 2018; U of Penn Law School, Public Law Research Paper No 19-01.

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