Informed Consent Law and the Forgotten Duty of Physician Inquiry

Courts and commentators have forgotten that embedded in the duty of physicians to obtain a patient\u27s informed consent is a prior obligation for physicians to get to know that patient. This is most clear in jurisdictions employing the reasonable person standard of disclosure. That standard requires physicians to disclose to a patient information that a reasonable person would want to know if that person were in the patient\u27s position or, more precisely, if that person were in what the physician should know to be the patient\u27s position. Thus, a physician must learn some minimal information about each patient\u27s position. An examination of common law reveals that, with rare exception, courts interpret the patient\u27s position to mean nothing more than the patient\u27s medical condition. This article argues that such an understanding of each patient is insufficient for the purposes of achieving efficient use of clinical time, healthy outcomes, and patient autonomy. Instead, the law should require physicians to make a reasonable inquiry about each patient\u27s treatment goals. Such an inquiry will dispel incorrect assumptions that can result from a mere medical assessment of each patient. Under a reasonable inquiry rule, patients would be less likely to receive unnecessary treatment, more likely to play a role in planning their own treatments, more likely to comply with treatment plans and more likely to perceive their physicians as caring professionals. The article concludes that the rule of reasonable inquiry about patients\u27 treatment goals strikes an appropriate balance between the need for autonomy and the need for clinical efficiency