Pursuing justice in the legal regulation physicians: The rise of the informed consent requirement in medicine.

摘要

This study focuses on the question of the purpose and meaning of the informed consent requirement in medical law. Since its introduction into law in 1957, the informed consent duty has been the subject of controversy among physicians, legal professionals, ethicists and consumer and patients' rights advocates. Researchers have demonstrated that a wide discrepancy exists between "informed consent" as it is envisioned in legal theory and as it is actually implemented--or not implemented--in everyday medical practice. They have found that the informed consent requirement has generally not been successfully integrated into the medical situation, and that rather than aiding the restructuring of the authoritarian and bureaucratic structure which currently obtains in the delivery of health care services, the informed consent requirement itself has been "restructured" in a manner which often accommodates, rather than challenges, physician paternalism and/or bureaucratic routine.; This sociolegal study utilizes social history, historical analysis and case law to clarify the purpose of the informed consent requirement. The results suggest that the informed consent requirement can be understood in connection with the overall development of medical malpractice law and with the expansion of liability associated with contemporary tort accident law and contract law. The pattern of contemporary law has been a movement from the common law of contract and tort to a unified approach based upon enterprise liability presuppositions. The author contends that the informed consent requirement implicitly introduced an enterprise liability approach into medical accident law, and that this is the consequence of the rise of a new legal culture which encourages the actualization of norms of "total justice."