Basics of the Physician's Duty of Notification to Patient about the Risks of Treatment
akhlāq-i pizishkī i.e., Medical Ethics,
Vol. 14 No. 45 (1399),
30 March 2020
,
Page 1-15
https://doi.org/10.22037/mej.v14i45.32719
Abstract
Background and Aim: In recent years, the physician's duty of notification to the patient about the risks of treatment has been considered as the main and most controversial part of the doctrine of informed consent in various legal systems; The purpose of this study is to analyze the basis of physician's duty to inform the patient about the risks of treatment in legal systems and their evaluation, in order to find a suitable basis in Iranian law.
Materials and Methods: This study is a library review with the descriptive-analytical method and a comparative approach; The existing texts on the physician's duty to inform the patient about the risks of treatment in the American and French legal systems have been studied and with analysis of the issues raised, attempted to extract and explain the basis of this duty.
Findings: The American legal system considers the duty to inform the physician about the risks of treatment, as a requirement of the patient's autonomy and believes it to have a legal nature; But in the French legal system, it is considered a necessity for human dignity and is considered to be inherently moral nature; In addition to these basics, the ideas of human body immunity and good faith have also been introduced in some legal systems. According to the jurisprudential and moral principles of Iranian law, accepting the doctrine of inherent human dignity as the theoretical basis of the physician's duty of notification to the patient is more compatible with Iranian law.
Ethical Considerations: The reports and citations to the articles and texts are based on honesty and trustworthiness, and with mentioning the sources used and without any bias or distortion of the findings.
Conclusion: Acceptance of the moral basis, that is the human dignity, for the duty of the physician to inform the patient about the risks of treatment and litigate a physician liability claim based on moral fault, can provide the basis for full compensation for material and moral damages.
Cite this article as: NasrollahiShahri O., Mobayen H. Basics of the Physician's Duty of Notification to Patient about the Risks of Treatment. Faṣlnāmah-i akhlāq-i pizishkī i.e., Quarterly Journal of Medical Ethics. 2020; 14(45): e30.
- Notification; Risks of Treatment; Informed Consent; Medical Malpractice
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References
Lotfi E. From Informed Consent to knowingly choosing: A study on the commitment to information delivery in physician-patient relationship. Med Law J 2009; 3(11): 39-73.
Katz J. The Silent World of Doctor and Patient. 1st ed. Maryland: Johns Hopkins University Press; 2002.
Sargos P. Two "historic" judgments in terms of general medical liability and specific liability linked to a doctor's failure of his duty to inform. Rec Dalloz 2010; 24(7429): 1522-1526.
Parsapoor MB, Ghasemzadeh SR. Legal and jurisprudential study of patient`s informed consent and physician`s duty of notification: A comparison between Iranian, English and French law. IJME 2011; 5(1): 39-50.
Cooke J. Law of Tort. 9th ed. England: Harlow, Pearson Longman; 2009.
Joodaki B, Khaleghi A. Patient’s consent, legal conditions and their criminal protection. IJME 2012; 5(6): 14-26.
Edozien LC. Self-determination in Health Care: A Property Approach to the Protection of Patients' Rights. 1st ed. England: Routledge; 2016.
Hostiuc S, Buda O. The Age of Informed Consent: A European History. 1st ed. England: Cambridge Scholars Publishing; 2019.
Ciortea AE. What Medical Risks Should Physicians Disclose to their Patients? Towards a Better Standard in American and French Medical Malpractice Law. J Civ L Stud 2017; 10: 173-221.
Vansweevelt T, Glover-Thomas N. Informed Consent and Health: A Global Analysis. 1st ed. England: Edward Elgar Publishing; 2020.
Mohr v. Williams. Minnesota: Supreme Court; 1905.
Tawose OM. The legal boundaries of informed consent. AMA Journal of Ethics 2008; 10(8): 521-523.
Raab EL. The parameters of informed consent. Transactions of the American Ophthalmological Society 2004; 102: 225-226.
Pratt v. Davis. Illinois: Supreme Court; 1906.
Rolater v. Strain. Oklahoma: Supreme Court; 1913.
Wandler M. The history of the informed consent requirement in United States federal policy. Massachusetts: Harvard University’s DASH; 2001 Report No.: ID# 705059320.
Shandell RE, Schulman FA, Smith P. The preparation and trial of medical malpractice cases. 1st ed. New York: Law Journal Press; 2018.
Schloendorff v. Society of New York Hospital. New York: Court of Appeals; 1914.
Salgo v. Leland Stanford Jr. University Board of Trustees. California: District Court of Appeal; 1957.
Natanson v. Kline. Kansas: Supreme Court; 1960.
Grzegorz Mazur OP. Informed consent, proxy consent, and Catholic bioethics: For the good of the subject. 1st ed. Netherlands: Springer; 2012.
Shah P, Thornton I, Turrin D, Hipskind JE. Informed Consent, Florida: Stat Pearls Publishing, Treasure Island (FL). 2020.
Thouvenin D. Scope of a reversal of case-law concerning the physician's duty to inform. Rec Dalloz 2001; 43(1): 3470-3477.
Khoshnoodi R. Changes in Principles of medical liability in French law. Sci J Forensic Med 2014; 20(4): 417-425.
Décision n° 94-343/344 DC. 27 juillet 1994.
N de pourvoi: 00-14564. Cour de cassation; 9 octobre 2001.
Bert D. The light of judgment Mercier! Rec Dalloz 2010; 28(7433): 1801-1802.
N de pourvoi: 09-13591. Cour de cassation, chambre civile 1; 3 juin 2010.
Cobbs v. Grant. California: Supreme Court; 1972.
Pizzalotto v. Wilson. Louisiana: Court of Appeals; 1983.
Haskins v. Howard. Tennessee: Supreme Court; 1929.
Gouse v. Cassel. Pennsylvania: Supreme Court; 1992.
Fogal v Genesee Hospital. New York: Appellate Division of the Supreme Court; 1973.
Housh v. Morris. Tennessee: Court of Appeals; 1991.
Matthies v. Mastromonaco. New Jersey: Supreme Court; 1999.
Shehee v. Aetna Casualty & Surety Co. Louisiana: United States District Court for the Western District of Louisiana; 1954.
Skripek v. Bergamo. New Jersey: Appellate Division of Superior Court; 1985.
Elliott C, Quinn F. Tort Law. 7th ed. England: Harlow, Pearson Longman; 2009.
Bal BS. An Introduction to Medical Malpractice in the United States. Clin Orthop Relat Res 2009; 467(2): 339–347.
Costa v. Regents of Univ. of California. California: District Court of Appeal; 1953.
Roybal v. Bell. Wyoming: Supreme Court; 1989.
Khoshnoudi R. Development in the Concept of Medical Malpractice and its Instances in the French Legal System. Medical Law Journal 2013; 7(26): 41-64.
Jourdain P. Failure to comply with the duty to information medical causes damage that must be repaired (reversal of jurisprudence). RTD Civ 2010; 3(1): 559-580.
G'Sell-Macrez F. Medical malpractice and compensation in France: Part I: the French rules of medical liability since the patients' rights law of march 4, 2002. Chi-Kent L Rev 2011; 86(3): 1093-1123.
Shoarian E, Ebadzadeh H. Obligations Arising from Treatment Contract with Emphasis on Draft Common Frame of Reference (DCFR). Medical Law Journal 2016; 10(38): 41-71.
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