Robin Fretwell Wilson (University of Illinois College of Law) has posted The Promise of Informed Consent (The Oxford Handbook of U.S. Healthcare Law Edited by I. Glenn Cohen, Allison K. Hoffman, and William M. Sage, Oxford University Press, 2016) on SSRN. Here is the abstract:
This chapter examines the challenges that need to be addressed before the promise of informed consent can be realized. It begins by tracing the evolution of physicians’ duty to secure a patient’s informed consent before turning to two seminal cases that established what physicians must disclose to patients to satisfy the duty of informed consent: Culbertson v. Mernitz and Canterbury v. Spence. In particular, it considers two competing standards for determining the scope of disclosure: the professional or “reasonable physician” standard and the patient-centered or “reasonable patient” standard. It also explores the application of duties to secure informed consent to medical research, along with criticisms against the duty to secure informed consent. Finally, it describes the efforts of state legislatures to standardize disclosure to patients so as to reduce the burden on and legal risk to physicians without compromising the right of patients to receive needed information.