Informed Consent

Why Do We Care About Informed Consent? "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. " Schoendorff v. Society of New York Hospital, 211 NY, 105 NE 92, 93 (1914) (Cardozo)

Nuremberg What were the Nuremberg trials? What part of the trials concerned medical care? What is the Nuremberg Code?Nuremberg Code How does it still affect aspects of medical treatment and research? Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782 A.2d 807 (Md. 2001) Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782 A.2d 807 (Md. 2001)

Failure of Consent as Battery What are the elements of a battery? Is it just a civil cause of action? What type of damages are necessary to recover for battery?

Advantage of Battery Do you need an expert to prove the plaintiff's case in a battery action? What is the effect of a battery claim on the jury? Consent cases? Sexual assault cases?

Problems with Battery What is the insurance issue with battery cases? How is this complicated by criminal prosecution? Why does this matter for medical negligence cases? How does this affect litigation strategy? How do you transform a battery into a negligence case? Sexual assault Consent - see the next cases

Moore v. Webb, 345 S.W.2d 239 (Mo.App. 1961) Review of case

Timeframe for tort law 1960s - changing nature of tort law Restatement of Torts 2nd, 402a Breakdown on defensive doctrines Broadening of the recoverable damages Breakdown of the conspiracy of silence Increased concern with patient's rights This is the context for the rise of informed consent litigation

Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (Cal. 1972) Review of Case