Rethinking Injury: The Case of Informed Consent

This article argues that the traditional debates between the expressive and compensatory views of tort law ignore the way in which an injury may itself have an expressive component, one that in turn increases the extent of physical harm suffered by a victim. I take up the example of informed consent in the medical malpractice context to show how an excessively narrow idea of physical harm has negative consequences for tort law in general. In these situations, when a physician performs a procedure without providing the patient with sufficient information, we can better understand the harm that occurs through a combination of civil recourse theory and new insights from the field of narrative medicine. Under the current regime, the effort to cabin potential liability for physicians’ well-intended conduct has resulted in a disconnect between a negligence standard—with its requirement of strictly physical injury—and the actual harm in question, which has historically been recognized as at least partially dignitary. I argue that this disconnect can be resolved through a broader view of the nature of the injury suffered when a physician performs an inadequately authorized procedure. A more appropriate view would take into account the newly understood, long-term physical harms that arise when a physician co-opts a patient’s subjective knowledge about and narrative control over his body. I then argue that by focusing on remedies that consider the relational quality of the injury imposed on patients in these cases, tort scholars can be more responsive to actual harms, not only in the case of informed consent but also throughout the tort regime generally