In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, a recent Pennsylvania Supreme Court case, demonstrates the dangers of a narrow, rigid approach to consent.
Health law, ethics, human rights, medical treatment options, informed consent policies & practices, Pennsylvania Medical Care Availability and Reduction of Error Act, MCARE, Shinal v. Toms, responsibility for obtaining consent, agent, specialization, nondelegable duty, team-based health care system
Feldman, Eric; Lynch, Holly Fernandez; and Joffe, Steven, "Informed Consent and the Role of the Treating Physician" (2018). Faculty Scholarship at Penn Law. 2031.
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