Ethics

There is divided opinion among the states regarding whether to apply a subjective or an objective standard of care standard in informed consent cases.  Those states employing a subjective standard of care effectively reduce causation in an informed consent case to a situation where the patients testimony is the controlling evidence.  Specifically, rather than allowing a jury or a judge to consider whether a particular patients decision is reasonable or rational, the finders of fact are legally compelled to determine whether an alleged injury is caused by a lack of informed consent solely with reference to that patients testimony.  Reasonableness and broader notions of objective rationality are therefore tangential and not allowed for consideration.  An objective standard of care, on the other hand, allows the finders of fact to recognize and consider a patients testimony while also allowing them to consider from other evidentiary sources what a prudent person in the patients position would have decided if suitably informed of all perils bearing significance (Ashe. v. Radiation Oncology Associates, 1999, p. 122).  The main difference is what evidence may be considered and how the finders of fact may assess and evaluate a patients decision-making process within the context of causation and informed consent.

The outcome would have been procedurally different, and perhaps the verdict would have been different, had the subjective standard of care been applied in this case of first impression in the State of Tennessee.  The states trial court, for instance, employed a subjective standard which effectively limited the evidence to the plaintiffs testimony.  As a result of the testimonial inconsistencies between the plaintiffs deposition and trial testimnony, the trial court judge took the case away from the jury and entered a directed verdict in favor of defendants.  On appeal, addressing the proper standard of care to be applied in such cases, both the Court of Appeals and the Supreme Court of Tennessee characterized the trial courts decision as improper.  Both appellate courts agreed, for example, that an objective standard should have been applied and that, as a result, the jury should have been allowed to consider both the credibility of plaintiffs testimony and whether a prudent individual in similar circumstances would have assented or refused treatment had informed consent been provided.  Procedurally, therefore, the case would have been different substantively, in terms of an actual verdict based on this expansion of evidentiary consideration, the case might very well be different, too.

A standard of care is an ethical and legal conception that has arisen within the larger context of negligence and tort law.  It generally refers to the minimum individual or professional standards through which duties may be performed without incurring legal liability.  How the standard of care in any particular case is defined depends, as previously mentioned, on underlying policy objectives related to ethical outcomes and the most rationale type of causation to attribute to different types of social and professional relationships.  It has been noted in informed consent cases that The legal basis for informed consent arises largely from fundamental principles of medical ethics and human rights. This is therefore a standard of care issue that directly implicates human rights considerations.  In the instant case, remanded to the trial court with instructions to provide an objective standard of care framework, the jury will now be able to judge the credibility of the patients testimony and also to determine what a reasonable person would have done in similar circumstances had informed consent been provided.  First, the patient does have a credibility problem because of the inconsistencies in her deposition and her subsequent testimony at trial.  Second, given the fact that this was her second bout with cancer, it seems that a reasonable person very well might have risked being in a wheelchair in order to avoid death.  This, however, is a difficult issue because different people value different qualities of life differently.  The patients assertion that she would rather die, in effect, than be confined to a wheelchair is therefore plausible and perhaps reasonable for her own quality of life philosophy.  The legal standard, however, is what a reasonable person would do rather than what this particular patient would do and this makes it slightly more likely that the jury will rule in favor of defendants on remand.  This is an extraordinarily difficult case to comment upon because, in a free society, it is generally hoped that people have control over their lives, liberties, and happiness.  Additionally, in informed consent cases, patients are dependent on the expertise of medical professionals.  The fact remains, in the instant case, that it cannot be precisely determined what the plaintiff would have done had informed consent been provided and a just and ethical legal system should account for possible bitterness and anger.  Thus, I agree with the Supreme Courts decision to adopt the majority objective standard of care.

Rather than having these types of cases frequently litigated, and compelling juries to render verdicts based on imperfect information and hypothetical or personal value systems, it would certainly be preferable if these types of legal cases could be prevented before they ever arise.  This would best be accomplished by expanding and revising medical ethics as they apply specifically in the context of providing informed consent to patients. There is no question that medical professionals are busy and that they work under stress similarly, there is no question that there are a variety of risks ranging from very unlikely to likely to occur.  Medical professionals and medical scholars, though, are very intelligent people and it would not be hard at all to create a committee responsible for creating a list of potential risks for all types of medical procedures.  A problem, however, is that data on what information 1 of the population finds necessary to make the decision is currently unavailable for most medical decisions.  This information can and should be compiled even if is not yet available to many medical professionals. These lists could then be provided to patients considering specific types of medical procedures, the language would have to be simple rather than overly technical to account for the patients lack of medical expertise, and perhaps the list could be signed after a five minute consultation with an independent informed consent specialist  in order to establish a more precise type of informed consent both ethically and legally.

In the final analysis, it is unfortunate that these types of cases arise with such frequency.  Individuals are quite dependent on medical professionals and it is hardly surprising that patients might vent their anger on responsible medical providers when a medical risk becomes a medical reality.  Informed consent, however, is a context which must be distinguished from negligence in the form of medical malpractice or from medical battery.  It is a unique type of ethical and legal claim and it can be prevented from arising.  This is a legal case which can be eradicated with proper and professional communication with patients prior to any medical procedures being applied.  Standard of care issues in informed consent cases ought to be solved at the root rather than frequently litigated.