medical malpractice, doctrine of informed consent, comparative law, information disclosure, American law, Frenchlaw, shared medical decision-making, new standards of disclosure
This essay discusses the historical and evolutionary back-ground of the doctrine of informed consent in medical malpractice cases in order to provide the reader with a detailed and a unique comparative perspective of the law in the United States and in France, along with some cross-references to other legal systems across the globe.
In order to achieve the desired goal, this paper conducts the analysis based on a hypothetical situation. Starting from these facts, the paper shows how and if the American and the French standards addressing the scope of the physician’s duty to disclose the risks intrinsic to the procedure draw a proper balance between the two conflicting interests (i.e., the patient and the physician).
Keeping in mind that the principles of medical ethics and human rights should guide the legal development of the doctrine of informed consent, it is proposed, in a non-exhaustive manner, that the addition of two alternative legal standards of disclosure: a “mixed standard” that should embrace into tort law the notion of error, as vice of consent, and the shared-medical decision-making, which involves engaging both the physician and the patient in the process of deciding on the medical treatment or procedure. These innovative solutions protect the patient’s ability to obtain the in-formation necessary for an intelligent decision and, at the same time, provide the physician with a clear understanding of what necessary information should be disclosed in order to avoid liability based on the doctrine of informed consent.
What Medical Risks Should Physicians Disclose to their Patients? Towards a Better Standard in American and French Medical Malpractice Law,
10 J. Civ. L. Stud.
Available at: https://digitalcommons.law.lsu.edu/jcls/vol10/iss1/9