Private Law Theory

Erin L Sheley, ‘Rethinking Injury: The Case of Informed Consent’, Brigham Young University Law Review, forthcoming, available at SSRN. For quite some time, the large majority of informed consent cases have been handled under a negligence rubric, the central issue being whether the physician’s disclosure of risks to the patient was reasonable, as measured either by the reasonable patient standard, or in some jurisdictions, the standard of the profession. The battery cause of action has now been relegated to a minor role. It only surfaces in cases in which the physician does not simply fail to give adequate information about the costs and benefits of an agreed-upon procedure, but has completely failed to secure the patient’s consent, for example, by operating on another body part or performing a tubal ligation following a C-section … (more)

[Martha Chamallas, JOTWELL, 11 June]

First posted 2014-06-12 05:51:25