bodily integrity and informed consent and justice benjamin cardozo

Over the last few days I have explored the topic of the obligation of truth-telling and disclosure placed on those with special knowledge of our situation. Essays are here and here. This theme of disclosure of the truth is intimately related to what we all know now as "informed consent." Though the phrase "informed consent" only emerged in a legal case as recently as 1957, it is a concept that goes back for decades previous to that in medical practice.*

[*I am grateful to Margaret A. Berger and Aaron D. Twersky, "Uncertainty and Informed Choice," 104 MichiganLR 257 (2005), fn. 78, for getting me started on the history of informed consent]

Two central principles lie behind the notion of informed consent. First, is that the one who suffers (the word "patient" is derived from the Latin verb meaning "to suffer" or "to endure") owns information about him/herself which discloses the nature of his/her condition and prognosis for recovery or death. That is, the doctor doesn't own the information. The doctor may know it, and the medical personnel treating the patient might be aware of it, but ultimately the information about the patient's condition belongs to the patient. Second, is that the one who is informed of his/her condition ought to be able to choose one of the medical alternatives presented in order to deal with the facts s/he has learned. Underlying both of these principles is, now that I think about it, even a deeper one--that the one who suffers is a person of dignity, and that dignity means that s/he ought to control decisions relating to the integrity of his/her body. No one has the right, therefore, to inflict his medical will on another without the person's consent.**

[**Narrow exceptions are permitted by all in cases where the patient is unable to consent and is in a life-threatening situation.]

If we think for a while about the way that informed consent developed in the medical profession, we get a helpful window into the way that issues of choice and personal autonomy ought to be framed in our day. We live in an age (2006) where questions of choice and autonomy are in the news on a daily basis--should gay people be allowed to marry? should terminally ill people be allowed to end their lives through medication prescribed by a physician? should women be able to choose abortions without restrictions? Indeed, these questions regarding our autonomy and ability to choose will, I predict, become subservient even to a larger question which is just emerging in American society and will dominate our public discussion for the next decade--what "autonomy" we are owed by people who have access to our private and/or personal information? Nevertheless, the discussion of all questions relating to personal autonomy and choice may be productively framed through the history of informed consent and truth-telling in medicine. Let's turn now to one old legal case (1914) on medical mistreatment, and then a long-forgotten book on "Morals and Medicine" (1954) to help us frame the discussion.

Justice Cardozo on a Patient's "Rights"

Much of the discussion in this 1914 case, decided by the NY Court of Appeals (the highest court in that jurisdiction), is of mere historical interest today, but I will begin with the introductory paragraph, which sort of places us in a dream world of its own. Justice Cardozo writes (Schloendorff. v. Society of NY Hospital, 105 NE 92 (NY 1914)):

"In the year 1771, by royal charter of George III, the Society of the New York Hospital was organized for the care and healing of the sick. During the century and more which has since passed, it has devoted itself to that high task. It has no capital stock; it does not distribute profits; and its physicians and surgeons, both the visiting and the resident staff, serve it without pay. Those who seek it in search of health are charged nothing if they are needy, either for board or for treatment. The well-to-do are required by its by-laws to pay $7 a week for board, an amount insufficient to cover the per capita cost of maintenance. Whatever income is thus received is added to the income derived from the hospital's foundation, and helps to make it possible for the work to go on. The purpose is not profit, but charity, and the incidental revenue does not change the defendant's standing as a charitable institution," Id.at 92-93.

Can you imagine such a hospital existing in our day in America? A hospital which truly was not for profit, which charged its patients only for "board" and only, then, if they were able to afford it? Where physicians and surgeons volunteered their expertise? Of course, the arrangements of such a hospital had legal consequences--the hospital itself was immune to suit for the acts of its physicians/nurses--but medical treatment was afforded to rich and poor alike for modest costs.

At issue in this case was the liability of the hospital in trespass for the unauthorized surgery performed by one of its physicans on Mrs. Scholendorff. Trespass, rather than negligence, was the cause of action because plaintiff argued that a physician action going beyond what was authorized was a battery and not simply an act of negligence. While the court ultimately upheld the lower court's dismissal of the case against the hospital, Cardozo did articulate one thought which is crucial to the evolving concept of patient dignity and informed consent. He said:

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages," Id. at 93.

Cardozo has always been known as one of the bench's most accomplished stylists; here he puts it in memorable terms: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body..."

Conclusion

It is from this principle of bodily integrity that the modern idea of informed consent grew. Let's see now how this idea connects with that of truth-telling in the medical profession.

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