Washington Law Review


Edwin Rauzi


Part I of this comment charts the current contours of the informed consent doctrine and traces the general pro-plaintiff shift which has developed since Washington recognized the tort a decade ago. The model used to illustrate this shift is a continuum, with the poles representing doctrinal and social policy choices favorable either to the plaintiff-patient or to the defendant-physician. Part II examines the expanded scope of the physician's duty to disclose material facts. This comment posits that the material facts which the physician must disclose to his patient are the risks involved in a proposed treatment, the alternatives to the proposed treatment, and any physical abnormalities discovered by the physician that may indicate danger to the patient. Finally, Part III considers the medical and legal implications occasioned by the pro-plaintiff shift of the doctrine and by the expanded scope of required disclosure. Special emphasis is placed on the prospect of recovering damages for a mistaken diagnosis under an informed consent theory. This comment concludes that the recent rapid expansion of the informed consent doctrine threatens to upset the decisional balance between patient and physician established by traditional malpractice law. The decision whether that expansion is to be encouraged or discouraged should rest on carefully considered policy choices, not the recent trend of exploiting the doctrine's malleability by characterizing traditional malpractice claims in informed consent terms.

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