Modernizing Informed Consent: Expanding the Boundaries of Materiality

Sawicki, Nadia N.

doi:10.2139/ssrn.2610766

Cited by 14 publications

(10 citation statements)

References 2 publications

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“…In the UK. informed consent to medical treatment remains focused upon disclosure of clinical information despite increasing evidence that many non-clinical factors influence patient decision-making (Sawicki, 2016). Indeed, financial interests, which are not of a clinical nature, have been shown to impact upon clinical decision-making and clinical outcomes (Robertson et al, 2012).…”

Section: Financial Interests As Significant and Materialsmentioning

confidence: 99%

Materiality of conflict of interest in informed consent to medical treatment in the United Kingdom

O’Neill

2021

Ethics & Behavior

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The UK Supreme Court ruling of Montgomery v Lanarkshire clarified that in obtaining informed consent to treatment, practitioners are under a duty to inform patients of material risks. Traditionally such risk has pertained to the clinical risks inherent to treatment. In examining empirical and judicial evidence, this paper makes the case for disclosure of potent financial interests; with potency relating to those interests likely to have greatest influence over practice. The paper explores how financial interests may detrimentally influence practice patterns and how non-disclosure of such interests may be linked to the erosion of patient trust and subsequent disinclination to consent to treatment. Judicial notions of material risk are explored, and the conclusion reached that they offer a broader interpretation of disclosable risk compared to current UK GMC guidance. It is anticipated that empirical evidence could be used by the courts in determining questions of both materiality and causation in cases of negligent non-disclosure of potent financial interests. The paper concludes that there is sufficient reason to surmise that a test case could successfully apply the principles identified therein to establish the materiality of conflict of interest in informed consent to medical treatment.

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Section: Financial Interests As Significant and Materialsmentioning

confidence: 99%

Materiality of conflict of interest in informed consent to medical treatment in the United Kingdom

O’Neill

2021

Ethics & Behavior

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“…A cause of action for informed consent requires that: (1) the physician breach a duty to disclose a material risk, (2) a reasonable patient would more likely than not have opted not to undergo the procedure had she known of the risk, (3) the patient suffered injury because of her decision, and (4) the patient's injury was caused by the undisclosed risk [17]. This cause of action, by way of expanding the scope of a physician's duty, can possibly attach liability to a domestic physician who refers or advises a patient to travel.…”

Section: Domestic Physician Liabilitymentioning

confidence: 99%

Plastic Surgery Overseas: How Much Should a Physician Risk in the Pursuit of Higher-Quality Continuity of Care?

Schweikart¹

2018

AMA Journal of Ethics

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In this article I discuss medical tourism, whereby patients go overseas for plastic surgery treatment in order to save money. However, if malpractice occurs abroad, there are several barriers that make it difficult for patients to recover damages. I explain these legal barriers and then discuss the possible causes of action patients can have over their "domestic physician" (their personal physician who might have referred surgery abroad or who gives postoperative follow-up care) and how these causes of action can create avenues of legal recovery not otherwise available. The possible liability of the domestic physician in the context of surgical malpractice abroad creates an ethical tension in the pursuit of higher-quality continuity of care, as the more involved the physician becomes in the process, the more likely he or she will assume liability.

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“…Informed consent is typically based in the state common law tort doctrine of negligence. 45 Failure to obtain a patient's informed consent is a form of medical malpractice. 46 The patient must establish the standard elements of a tort cause of action: duty, breach, injury, and causation.…”

Section: Informed Consent Lawmentioning

confidence: 99%

Certified Patient Decision Aids: Solving Persistent Problems with Informed Consent Law

Pope¹

2017

J. Law. Med. Ethics

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Modernizing Informed Consent: Expanding the Boundaries of Materiality

Abstract: 2. See infra Parts I.B, II.C. 3. The phrase "preference-sensitive care" was coined by John Wennberg, whose influential research on practice variations led to the development of modern models of shared decision-making.

Cited by 14 publications

References 2 publications

Materiality of conflict of interest in informed consent to medical treatment in the United Kingdom

Materiality of conflict of interest in informed consent to medical treatment in the United Kingdom

Plastic Surgery Overseas: How Much Should a Physician Risk in the Pursuit of Higher-Quality Continuity of Care?

Certified Patient Decision Aids: Solving Persistent Problems with Informed Consent Law

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