ABSTRACT
Between 1972 and 1978, 10 jurisdictions followed Canterbury. A number of States reacted to the medical malpractice crisis of the mid 1970s by passing legislation, and currently around 37 American States recognise the informed consent claim, but more than half of these impose statutory limits on the action. States such as Arkansas, Idaho and Texas confirmed their courts’ retention of the professional standard: see Arkansas Stat Ann #34-2614(b)(1); Idaho Code #39-4304; and Texas Code Ann Title 71 Art 4590I #6.03(a). Georgia, Louisiana and Washington confirmed the judicial adoption of informed consent: see Georgia Stat Ann #88-2906; Louisiana Stat #1299.40(A); and Washington Stat #7.07.050(1)(a). States such as North Carolina actually altered the approaches taken by their courts. In effect, the North Carolina legislature reversed the effect of its own Supreme Court’s decision in McPherson v Ellis (1982) 287 SE 2d 892, reverting to an objective test of causation, in other words, moving from a subjective patient standard to a professional standard of disclosure: see NC Gen Stat #90-21.13(a)(3); and NC Gen Stat #90-21.13(a)(1). States such as Hawaii, Pennsylvania and New York carefully defined the use of therapeutic privilege. Under the Hawaiian statute, Hawaii Rev Stat #6713(c), full disclosure of all risks would only be restricted where ‘the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient’s health’. Under the New York Public Health Law #2805-d(4)(d), disclosure would have to be restricted where ‘the manner and extent of such disclosure could reasonably be expected to adversely and substantially affect the patient’s condition’. In the State of Pennsylvania, under Pennsylvania Cons Stat #1301.103, disclosure of all the risks might be withheld where ‘furnishing the information in question to the patient would have resulted in a seriously adverse effect on the patient or on the therapeutic process to the material detriment of the patient’s health’. States like Texas even delegated to a committee of physicians and lawyers the task of specifying what risks must be disclosed: Tex Rev Civ Stat Ann Art 4590I #6.03(a), 6.04(a), (d) (Vernon Cum Supp 1985). Other States also passed legislation ‘to ensure that patients received certain information for designated treatments such as sterilisation, electroconvulsive therapy, breast cancer treatments, and for the administration of certain drugs’ (see Healy (1999), p 101). These statutes had no intention of securing financial compensation for patients, but were attempting to secure compliance by doctors so that patients would undergo certain treatments only with full knowledge of the degree of risk involved.
