Villanova Law Review
On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a take-it-or-leave-it basis.
This approach to informed consent is wholly wrong and harmful to the trust necessary to the doctor-patient relationship. The doctrine of informed consent is intended to aid and empower patients when making healthcare decisions, not benefit doctors and hospitals. The practice described above, requiring patients to sign consent forms that benefit doctors or hospitals, is contrary to various doctrines associated with contract law, fiduciary duties, and medical ethics. Further, this approach can interfere with the doctor-patient relationship.
It can be argued that substituted caregiver terms serve important societal interests. When viewed in the best light, substituted caregiver terms allow doctors, hospitals, and medical schools to train the next generation of doctors. When viewed from a different perspective, the terms benefit doctors and hospitals because the terms allow doctors and hospitals to make more money.
Because the current approach to informed consent employed by some doctors and hospitals is inconsistent with concepts of fairness contained in contract law, fiduciary duties, medical ethics, and is destructive to the trust necessary to an effective doctor-patient relationship, this article proposes a different approach. This approach would require a clear delineation of the various documents in the doctor-patient relationship. These documents include: the contract; Health Insurance Portability and Accountability Act (HIPAA) disclosure; conflict or potential conflict of interest; and informed consent. Further, to enhance patient understanding, each document would be explained to the patient in a face-to-face meeting. This Article’s proposal permits doctors and hospitals to include substituted caregiver terms, but these terms must be optional and be included in the doctor-patient contract. Absent an emergency, doctors and patients would sign these contracts at the beginning of the doctor-patient relationship. Finally, informed consent forms would be used strictly to aid patients in understanding the risks and rewards of a particular procedure and the risks and rewards of appropriate alternatives.
Timothy C. MacDonnell, Making an Offer That Can't Be Refused: The Need for Reform in the Rules Governing Informed Consent and Doctor-Patient Agreements, 67 Vill. L. Rev. 509 (2022).