Those jurisdictions that require the physician to disclose to the patient all material risks incident to proposed therapy as a condition precedent to securing the patient's informed consent to that therapy simultaneously afford the physician the affirmative defense that disclosure of the risk that eventuated would have had an adverse effect on the patient's physical or emotional well-being and, therefore, nondisclosure of that risk was consistent with the professional standard of disclosure. It is not entirely clear if that enigmatic defense is the result of a judicial failure to recognize the inconsistency between requiring fulldisclosure and allowing that defense, unthinking judicial habit, a tacit litigation compromise, or judicial rapture with the concept of "caring custody." Whatever the reason for judicial retention of that affirmative defense, the patient's right of self-determination will not be protected adequately until the defense is repudiated.
David E. Seidelson,
Medical Malpractice Actions Basd on Lack of Informed Consent in "Full-Disclosure" Jurisdictions: The Enigmatic Affirmative Defense,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol29/iss1/4