PROFESSIONAL PRACTICE STANDARD OF DISCLOSURE
In Natanson vs. Kline (Kansas, 1960), cobalt radiation (a relatively new procedure for
the time) was administered following a radical mastectomy. After suffering serious
side effects from the therapy (injuries to the chest, skin, and cartilage), the patient
sued the physician. The physician acknowledged that he had failed to warn the
patient of the risks that were inherent in this procedure. This case established a
category of risks that must be disclosed to the patient. The question of how
disclosure should best be made was judged to be primarily one of medical judgment.
The duty of the physician is to make "those disclosures which a reasonable medical
practitioner would make under the same or similar circumstances." This is the
standard established in the early cases and the one that is still law in the majority of
jurisdictions.
REASONABLE PERSON (MATERIAL RISK) STANDARD OF DISCLOSURE
In Canterbury vs. Spence (Wash. D.C., 1972), a laminectomy (surgical removal of
the posterior arch of a vertebra) was performed for severe back pain. On the
following day, the patient fell out of bed causing major paralysis. The patient had not
been warned that a laminectomy might increase the danger of paralysis as a result of
such eventualities as falling out of bed. A second operation failed to relieve the
paralysis, and though the patient did improve, he never returned to normal. The
court ruled that information "material" to the decision must be disclosed. It said that a
risk was material "when a reasonable person, in what the physician knows or should
know to be the patient's position, would be likely to attach significance to the risk or
cluster of risks in deciding whether or not to forego the proposed therapy." The court
went on to say: "...the patient's right of self-decision... can be exercised only if the
patient possesses enough information to enable an intelligent choice."
(1) Objective test. The original reasonable person standard applies an
objective test, which measures the individual patient against a reasonable person
standard. It asks what information a reasonably prudent person in the patient's position
would consider material if informed of the same risks. This standard is not without its
problems. "Material information" and the concept of a reasonable person have never
been thoroughly defined. (Who, exactly, is this prototype of the reasonable person?) It
is difficult, at times, for physicians to anticipate what a reasonable person might need to
know. But, for all its shortcomings, the reasonable person standard better serves the
patient's needs in coming to a personal decision on treatment procedures than the
professional practice standard.
MD0067
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