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Disclosure of Alternatives: In a Wide Context

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The Duty of Medical Practitioners and CAM/TCM Practitioners to Inform Competent Adult Patients about Alternatives

Abstract

Some courts and scholars have a tendency to confuse “disclosure of alternatives” with recommendation of treatments and other aspects of health care. There is a need to put the issue of the duty to inform about alternatives in a clear context. This chapter endeavours to construct a model for interpreting different aspects of health care, distinguished by the concepts of “unbiased/balanced disclosure”, “genuine selection”, “personalised recommendation”, and “performance” of treatment. As far as “disclosure” of alternatives is concerned, a basic theme is that, while doctors have latitude and liberty in “selecting” treatments between different “schools” of thought, they should overcome their preferences or “school”, and present patients with unbiased and balanced information about divergent “schools” of thought, when it comes to disclosure. The conventional or conservative wisdom of only subjecting recommended procedures to the duty to inform confuses the context of selection/recommendation of the proposed treatment with that of disclosure of treatment options.

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Notes

  1. 1.

    1For example, what the Rogers test offered is about the materiality of “risks”. The Australian civil liability legislation followed the focus on “risks”. For example, Section 21(1) of Civil Liability Act 2 (Qld) (“A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk…” (emphasis added)).

  2. 2.

     Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643, 654.

  3. 3.

     Canterbury v. Spence, 464 F.2d 772, 784–785(1972).

  4. 4.

     Rogers v. Whitaker (1992) 175 C.L.R. 479, 489–490 (HCA).

  5. 5.

     Rosenberg v. Percival [2001] 205 CLR 434, 465.

  6. 6.

     See, Canada: Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 352, at [55] (Alta. C.A.) (citing Picard J. A. and Robertson Legal Liability of Doctors and Hospitals in Canada, 3rd ed. (Scarborough: Carswell, 1996), pp. 129–130). Australia: (1) Loane Skene. 2008. Law and Medical Practice: Rights, Duties, Claims and Defences (3 ed.). Australia: LexisNexis Butterworths. 190; (2) Michael Weir. 2. Obligation to advise of options for treatment – Medical doctors and Complementary and Alternative Medicine practitioners. JLM 10:296–307. 297; (3) Elizabeth Brophy. 2. Does a doctor have a duty to provide information and advice about complementary and alternative medicine? JLM 10:271–284. 276. New Zealand: Joanna Manning. 2004. Informed consent to medical treatment: The common law and New Zealand’s Code of Patients’ Rights. Medical Law Review 12:181–216, 194–195.

  7. 7.

     Joanna Manning (2004), 194–195 (citing I. Kennedy and A. Grubb, Medical Law (3rd edn.) (2000) at 712).

  8. 8.

     Thibault v. Fewer, [2002] 1 W.W.R. 204, 216 at [57].

  9. 9.

     Rosenberg v. Percival [2001] 205 CLR 434, 458–459, per Gummow J.

  10. 10.

     Thomas Addison (2), 177. However, there is also some evidence to show that courts have found risks to be material, even if the treatment involved is essential or inevitable at some point in time. See, Chappel v. Hart [1998] HCA 55; (1998) 195 CLR 232; 156 ALR 517; (1998) 72 ALJR 1344 (HC of A). It is submitted that the availability of alternative treatments, including alternative procedures entailing comparable risks, is most appropriately considered at the causation stage rather than at the materiality stage. See, Thomas Addison (2), 177–178.

  11. 11.

     Haughian v. Paine (1987), 37 D.L.R. (4th) 624, 643.

  12. 12.

     Haughian v. Paine (1987), 37 D.L.R. (4th) 624, 644.

  13. 13.

     Richards v. Rahilly [2005] NSWSC 352, at [229].

  14. 14.

     Haughian v. Paine (1987), 37 D.L.R. (4th) 624, 644.

  15. 15.

     Haughian v. Paine (1987), 37 D.L.R. (4th) 624, 644.

  16. 16.

     Birch v. University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74].

  17. 17.

     Adams v. Richland Clinic, Inc., P.S., 681 P.2d 1305, 1309–1310 (Wash.App. 1984) (emphasis added).

  18. 18.

       Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn. 1980).

  19. 19.

     Adams v. Richland Clinic, Inc., P.S., 681 P.2d 1305, 1310 (Wash. App. 1984), footnote 4 (talking about statutory provisions (RCW 7.70.050(2) (3); “a fact is defined as or considered to be a material fact, if a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment”; material facts include “the recognized possible alternative forms of treatment, including nontreatment”).

  20. 20.

     The Committee on California Civil Jury Instructions, California Civil Jury Instructions (BAJI) (Spring 2009 Edition) 6.11 (“a physician has a duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment” (emphasis added); “[m]aterial information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure”); Mathis v. Morrissey, 13 Cal.Rptr.2d 819, 827 (Cal. App. 3 Dist. 1992) (“A plaintiff is free to present expert evidence and argument that, as a factual matter, the existence of an opposing school of thought was material information that should have been disclosed.”).

  21. 21.

     Sard v. Hardy, 379 A.2d 1014, 1022 (Md. 1977).

  22. 22.

     Sard v. Hardy, 379 A.2d 1014 (Md. 1977).

  23. 23.

     The case involved a sterilization operation – bilateral tubal ligation. The Court envisaged five options for the purpose of sterilization: (1) female sterilization; (2) oral contraception; (3) the use of an intrauterine device; (4) male vasectomy; and (5) the option of undergoing sterilization at a later date with a correspondingly greater likelihood of success rather than at the time of Caesarean section delivery, because the fail-rates of tubal ligation diminished dramatically when performed at some time other than Caesarean birth. As regards the female sterilization by tubal ligation, the Court also identified six methods employed in the United States: Madlener technique; Pomeroy technique; Irving method; Uchida method; Aldridge method; and Erlich method. These methods have varying fail-rates. The problem was that the defendant did not make the patient aware of the possibility of vasectomy, the option of undergoing sterilization at a later time and the six methods of performing a tubal ligation. According to the formulations of the Court, “the proper test for measuring the physician’s duty to disclose risk information is whether such data will be material to the patient’s decision” (emphasis added). Applying the test, the Court did not encounter difficulty in holding that a reasonable person in the patient’s position would have attached “considerable” or “material” significance to the risk of fertility (the operation not being 100 % successful) and the option of undergoing sterilization at a later time. Because it was customary for physicians to discuss the possibility of vasectomy with patients consulting for sterilization, the omission to do that, in the opinion of the Court, was an obvious breach of the duty of disclosure. See, Sard v. Hardy, 379 A.2d 1014, 1019–1023 (Md. 1977).

  24. 24.

    24For example, General Medical Council (UK) expects their doctors to give their patients the information they want or need. The information includes: (1) “options for treating or managing the condition, including the option not to treat”; (2) “the purpose of any proposed investigation or treatment and what it will involve”; (3) “the potential benefits, risks and burdens, and the likelihood of success, for each option”. See, General Medical Council (UK) Consent: Patients and Doctors Making Decisions Together (2008), paragraph 9 (c) (d) (e) at <www.gmc-uk.org> (Last accessed 24 April 2010). See also, The Royal Australasian College of Physicians (RACP) Code of Professional Behaviour (2006) 1.2.1 (I) (i) <http://www.racp.edu.au/page/policy-and-advocacy/ethics> (Last accessed 27 April 2010) (“The physician must discuss with patients/relatives/carers/legal guardians the available treatment options, including no treatment; outline the relevant risks of treatment”); New Zealand Medical Association Code of Ethics (Revised 2008), p. 7 at <http://www.nzma.org.nz> (Last accessed 22 April 2010) (“Doctors should ensure that patients are involved, within the limits of their capacities, in understanding the nature of their problems, the range of possible solutions, as well as the likely benefits, risks, and costs, and should assist them in making informed choices.”).

  25. 25.

     See, Chap. 9.

  26. 26.

     Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 352, at [57] (arguing that to overextend the duty to inform of alternative treatments will place an “unpredictable and monumental”, “much too onerous” responsibility upon the medical profession).

  27. 27.

     Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 352, at [57].

  28. 28.

    28The Court’s omission to demarcate the boundaries of the duty to inform was justified by the factual circumstances in that case. The alternative medical procedure involved in that case was one treatment that the profession had been familiar with for many years and that some of specialists in that profession preferred. It is not a fringe alternative, not an alternative offered outside the relevant specialty or by some other form of health care. See, Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 352–353, at [58].

  29. 29.

     Van Dyke v. Grey Bruce Regional Health Center (2005), 255 D.L.R. (4th) 397, at [65].

  30. 30.

     Van Dyke v. Grey Bruce Regional Health Center (2005), 255 D.L.R. (4th) 397, at [65] (emphasis added).

  31. 31.

     Van Dyke v. Grey Bruce Regional Health Center (2005), 255 D.L.R. (4th) 397, at [65].

  32. 32.

     Van Dyke v. Grey Bruce Regional Health Center (2005), 255 D.L.R. (4th) 397, at [66].

  33. 33.

     Van Dyke v. Grey Bruce Regional Health Center (2005), 255 D.L.R. (4th) 397, at [66].

  34. 34.

     Scalere v. Stenson, 260 Cal. Rptr. 152, 153–155 (Cal. App. 2 Dist. 1989) (after having visited four California cases, the court concluded that the predicate for the duty to disclose is the existence of “some proposed therapy” or “a recommended medical procedure”), but compare, the dissenting opinion in Scalere v. Stenson, 260 Cal. Rptr. 152, 158 (Cal. App. 2 Dist. 1989)(per Johnson J. dissenting) (“It is clear from Cobbs and Truman the patient’s right of choice is not limited to a veto power over treatment recommended by her doctor.”).

  35. 35.

     Vandi v. Permanente Medical Group, Inc., 9 Cal.Rptr.2d 463 (Cal. App. 3 Dist. 1992); Jamison v. Lindsay, 166 Cal.Rptr.443, 446–447 (Cal. App. 1 Dist. 1980) (courts finding that the respondents did not propose any therapy/treatment or tests).

  36. 36.

     Parris v. Sands, 25 Cal.Rptr.2d 800 (Cal.App. 2 Dist., 1993).

  37. 37.

     Scalere v. Stenson, 260 Cal.Rptr.152, 156 (Cal. App. 2 Dist. 1989) (emphasis added).

  38. 38.

     Vandi v. Permanente Medical Group, Inc., 9 Cal.Rptr.2d 463, 467 (Cal. App. 3 Dist. 1992).

  39. 39.

     Vandi v. Permanente Medical Group, Inc., 9 Cal.Rptr.2d 463, 467 (Cal. App. 3 Dist. 1992) (“It would be anomalous to create a legally imposed duty which would require a physician to disclose and offer to a patient a medical procedure which, in the exercise of his or her medical judgment, the physician does not believe to be medically indicated.”).

  40. 40.

     Vandi v. Permanente Medical Group, Inc., 9 Cal.Rptr.2d 463, 467 (Cal. App. 3 Dist. 1992). Also see, Parris v. Sands, 25 Cal.Rptr.2d 800, 803 (Cal.App. 2 Dist., 1993) (“[The patient], however, was not without an appropriate legal theory to recover damages. Negligent failure to advise a patient to pursue a necessary course of treatment is an action under ordinary medical negligence, upon which the jury here received proper instructions.”) (internal citations omitted, emphasis added); Jamison v. Lindsay, 166 Cal.Rptr.443, 447 (Cal. App. 1 Dist. 1980) (“Appellant was not without an appropriate legal theory under which she might recover damages. Negligent failure to advise a patient to pursue a potentially necessary course of treatment is actionable under ordinary medical negligence standards, on which the jury was instructed.”). Although, according to these authorities, there is no general duty of disclosure with respect to nonrecommended procedures, the courts did not close the door absolutely. See, Vandi v. Permanente Medical Group, Inc., 9 Cal.Rptr.2d 463, 468 (Cal. App. 3 Dist. 1992) (“In an appropriate case there may be evidence that would support the conclusion that a doctor should have disclosed information concerning a nonrecommended procedure …. It follows that even though a physician has no general duty of disclosure with respect to nonrecommended procedures, he nevertheless must make such disclosures as are required for competent practice within the medical community.”).

  41. 41.

    41Jamison v. Lindsay, 166 Cal.Rptr.443 (Cal. App. 1 Dist. 1980) (The surgeon performed a surgery, removed the patient’s right ovary and a large cystic mass, and sent the cystic mass to a pathologist for analysis. The pathologist had observed that the teratoma contained both mature and immature tissue. Having been aware that “for many years there had been divergent opinions among pathologists as to whether immature tissue in a teratoma is potentially malignant”, the pathologist adhered to his stance that such immature tissue was not malignant, and thus released a report identifying the mass as a benign teratoma, without informing the surgeon of either the presence of immature tissue or that some pathologists would consider the mass to be potentially malignant. The bad thing was that, after being told that the mass was benign, the patient did not seek further treatment, and subsequently developed a malignancy.).

  42. 42.

     Parris v. Sands, 25 Cal.Rptr.2d 800, 803 (Cal. App. 2 Dist.,1993). See also Traxler v. Varady, 16 Cal.Rptr.2d 297, 303 (Cal. App. 1 Dist. 1993) (involving almost identical instruction: “A physician rendering a diagnosis has a duty to inform the patient that other members of the medical profession might render a different diagnosis based on a contrary recognized school of thought.”); Mathis v. Morrissey, 13 Cal.Rptr.2d 819 (Cal. App. 3 Dist. 1992) (the plaintiff proposed a special instruction which reads: “When surgery or other dangerous therapeutic procedures are being considered, the physician must inform the patient of the available alternatives or schools of thought and the hazards involved so that the patient is able to give effective consent to the proposed treatment.”).

  43. 43.

     See, Parris v. Sands, 25 Cal.Rptr.2d 800, 803 (Cal. App. 2 Dist., 1993).

  44. 44.

     Traxler v. Varady, 16 Cal.Rptr.2d 297, 303 (Cal. App. 1 Dist. 1993) (the proposed special instruction was refused because the appellant cited no evidence that there were divergent “schools of thought” regarding any of the decisions made by her treating physicians).

  45. 45.

     It reads: “When a doctor recommends a particular procedure then he or she must disclose to the patient all material information necessary to the decision to undergo the procedure, including a reasonable explanation of the procedure, its likelihood of success, the risks involved in accepting or reject the proposed procedure, and any other information a skilled practitioner in good standing would disclose to the patient under the same or similar circumstances.”(emphasis added)

  46. 46.

     Mathis v. Morrissey, 13 Cal.Rptr.2d 819, 826–827 (Cal. App. 3 Dist. 1992) (“By adding the requirement of informing the patient of ‘school of thought’, plaintiffs’ suggested instruction would go further and impose liability upon a physician as a matter of law for the failure to inform a patient of the possible views of other health care providers merely because at trial and in hindsight an expert disagreed with the defendant’s treatment decision. Such a result is not supported by any authority and would impose an excessively onerous burden upon treating physicians. What the duty of disclosure requires for purposes of informed consent is the divulgence of material information, not necessarily the revelation of the existence of various schools of thought.” (emphasis added)).

  47. 47.

     Mathis v. Morrissey, 13 Cal.Rptr.2d 819 (Cal. App. 3 Dist. 1992).

  48. 48.

     Mathis v. Morrissey, 13 Cal.Rptr.2d 819, 826 (Cal. App. 3 Dist. 1992).

  49. 49.

     Mathis v. Morrissey, 13 Cal.Rptr.2d 819, 826 (Cal. App. 3 Dist. 1992).

  50. 50.

     Mathis v. Morrissey, 13 Cal.Rptr.2d 819, 826 (Cal. App. 3 Dist. 1992) (emphasis added).

  51. 51.

     Mathis v. Morrissey, 13 Cal.Rptr.2d 819, 826 (Cal. App. 3 Dist. 1992).

  52. 52.

     Peukert v. Roncone, Not Reported in Cal.Rptr.3d, 2004 WL 2915476 (Cal. App. 4 Dist., 2004).

  53. 53.

     Peukert v. Roncone, Not Reported in Cal.Rptr.3d, 2004 WL 2915476 (Cal. App. 4 Dist., 2004), 2 (“Once a doctor has made a treatment decision then the fact that other doctors would disagree or that there are other schools of thought on the correct treatment may be material information which must be disclosed to the patient in obtaining consent to treatment.”).

  54. 54.

     Peukert v. Roncone, Not Reported in Cal.Rptr.3d, 2004 WL 2915476 (Cal. App. 4 Dist., 2004), 3.

  55. 55.

     Peukert v. Roncone, Not Reported in Cal.Rptr.3d, 2004 WL 2915476 (Cal. App. 4 Dist., 2004), 4. As regards the special instruction, the court expressed several concerns. First, the Mathis court’s statement, along which the plaintiff’s proposed special instruction was formulated, was deemed as “dicta”. Second, the Mathis court’s statement regarding disclosure of schools of thought was narrowly and restrictively interpreted as applying only to “an entirely different context” involving “a serious surgery or other ‘dangerous therapeutic procedure[]’ such as mastectomy”. The court did not want to read that statement, “which was a prelude to a hypothetical situation dealing with the treatment of breast cancer”, “as designed to set out a principle applicable to all cases”. Third, in the words of the court, “[the plaintiff-patient’s] use of verbatim language from Mathis illustrates the hazard posed by directly relying on language from a case, as opposed to offering a clear, concise and neutral statement of the legal principle embodied in the holding of the case.”

  56. 56.

     Traxler v. Varady, 16 Cal.Rptr.2d 297 (Cal. App. 1 Dist. 1993) (The appellant proposed an instruction, which highlighted disclosure of the “available choices” with respect to recommended therapy, to supplement the standard informed consent (material information) instruction. The plaintiff’s request was declined because the proposed instruction, which was formulated in specific words and “simply a slightly more specific restatement” of the general principle, was already covered by a complete, a more encompassing, and a more general instruction.).

  57. 57.

     Bucknam v. Kostuik (1984) 3 D.L.R. (4th) 99 (An orthopaedic surgeon performed surgery on a woman with scoliosis. One alternative operation (a single fusion) is less serious than the proposed one.).

  58. 58.

     Bucknam v. Kostuik (1984) 3 D.L.R. (4th) 99, 111.

  59. 59.

     Nattrass v. Weber, 2008 ABQB 259, at [393].

  60. 60.

     Van Mol v. Ashmore (1999), 168 D.L.R. (4th) 637.

  61. 61.

     Van Mol v. Ashmore (1999), 168 D.L.R. (4th) 637, 711, at [238].

  62. 62.

     Van Mol v. Ashmore (1999), 168 D.L.R. (4th) 637, 714, at [251].

  63. 63.

     Van Mol v. Ashmore (1999), 168 D.L.R. (4th) 637, 714–715, at [253] (emphasis added).

  64. 64.

     Van Mol v. Ashmore (1999), 168 D.L.R. (4th) 637, 714, at [252].

  65. 65.

     Richards v. Rahilly [2005] NSWSC 352.

  66. 66.

     Richards v. Rahilly [2005] NSWSC 352, at [225].

  67. 67.

     Richards v. Rahilly [2005] NSWSC 352, at [236] (emphasis added).

  68. 68.

     Richards v. Rahilly [2005] NSWSC 352, at [236] (emphasis added).

  69. 69.

     Richards v. Rahilly [2005] NSWSC 352, at [235].

  70. 70.

     Patterson v. Hryciuk, 2004 ABQB 934, (2004) 45 Alta. L.R. (4th) 219, at [45]. See also Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 351, at [54] (“Lack of negligence in the choice of treatment or the manner in which that treatment is performed does not negate a physician’s additional duty to inform his patient of the risks of proceeding in one way as opposed to another.”).

  71. 71.

     Haughian v. Paine (1987), 37 D.L.R. (4th) 624, 635.

  72. 72.

     Patterson v. Hryciuk, 2004 ABQB 934, (2004) 45 Alta. L.R. (4th) 219, at [48] (citing Seney v. Crooks (1998), 166 D.L.R. (4th) 337 at 353–354 (Alta.C.A.)).

  73. 73.

     Haughian v. Paine (1987), 37 D.L.R. (4th) 624, 643; Thibault v. Fewer, [2002] 1 W.W.R. 204, 217, at [59].

  74. 74.

     Stover v. Surgeons, 635 A.2d 1047, 1050 (Pa. Super. 1993) (“the choice of prosthesis, by medical common sense, must be left with the physician. … However, where other potential implants are recognized as medically sound alternatives, the attending physician must inform the patient as to the risks and benefits of those alternatives.”); Harrison v. U.S., 233 F.Supp.2d 128, 133 (D. Mass., 2002) (“because there are only two methods of childbirth, once there is a material risk to vaginal birth, the doctor’s duty to disclose that risk also encompasses the duty to present information about C-sections.”); Dewes v. Indian Health Service, Public Health Service, 504 F.Supp. 203, 208 (D.C.S.D. 1980) (acknowledging that the method employed by the defendant was a “recognized” method in dealing with the plaintiff’s situation, but holding that the defendant “had a duty to inform plaintiff’s parent of at least two alternative forms of treatment” for the plaintiff’s condition); Harwell v. Pittman, 428 So.2d 1053–1054 (La. App. 1 Cir., 1983) (acknowledging that “[w]hether or not to operate is a matter of clinical judgment for the treating surgeon after weighing all the facts before him”, but rejecting the defendant’s contention that his failure to discuss non-surgical alternative treatments was arguably based on his opinion that plaintiff’s condition justified surgery); Backlund v. University of Washington, 975 P.2d 950, 954–955 (Wash., 1999)(involving a more conservative form of treatment (phototherapy) and a riskier treatment (blood transfusion) for an infant’s jaundice; holding that the jury’s exoneration of a physician from liability for negligence did not forestall a plaintiff’s claim for failure to obtain informed consent).

  75. 75.

     Salis v. U.S., 522 F.Supp. 989 (D.C.Pa. 1981).

  76. 76.

     Salis v. U.S., 522 F.Supp. 989, 996 (D.C.Pa. 1981). Intermittent claudication was the condition the patient suffered from and the physician dealt with. As to the treatments for this condition, two important facts were established by the expert testimony. First, there is a general approach. Surgery is not the ordinary course of treatment for claudicants. In a large majority of cases, the condition will stabilize or improve with a program of “conservative” treatment, e.g. drugs, physical therapy. Second, there are exceptions to the general approach. There exists “a highly personal” decision to undergo an operation to relieve the claudication. The appropriateness of surgery depends on the relative weight of these considerations: “(1) the patient’s lifestyle, (2) the extent to which the disease had developed, (3) the inherent risks, and (4) the likelihood that the problems can be remedied through conservative methods”.

  77. 77.

     Salis v. U.S., 522 F.Supp. 989, 996–997 (D.C.Pa. 1981) (emphasis added).

  78. 78.

     Salis v. U.S., 522 F.Supp. 989, 1000 (D.C.Pa. 1981). The court noted that the patient had three options open: (1) to risk the surgery and its incidental procedures, (2) to adjust his life style in light of the intermittent claudication, and (3) to continue pursuing conservative therapy. Each alternative had a separate set of dangers and potential benefits. In the court’s opinion, the conservative treatment needs to be accorded a higher priority than the surgical intervention. The court made it clear that not all options are at the same level of priority. Angiography is a diagnostic test which is only appropriate when surgery is under consideration. Thus, the primary alternative would have been a course of “conservative” therapy to handle the problem without surgery. See, Salis v. U.S., 522 F.Supp. 989, 1004 (D.C.Pa. 1981).

  79. 79.

     Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350, 354 (“A charge of negligence in a choice of treatment is refuted, as a matter of law, by showing that a respectable minority of expert physicians approved the method selected. But where a physician is charged with negligence in the actual performance of a treatment, after its method was chosen over others, evidence tending to show such negligence presents a case for the jury.”) (emphasis added).

  80. 80.

     Kenny v. Wepman, 753 A. 2d 924, 926 (R. I. 2000). In this case, a patient lost all vision in her eye following cataract surgery. The surgery was suggested by defendant-ophthalmologist to remove a cataract in her left eye. Expert witnesses established that the mere presence of a cataract does not justify surgery. The cataract surgery is justified only when the cataract causes visual problems or interferes with a patient’s lifestyle. Although there was no negligent performance of surgery, the Supreme Court of Rhode Island agreed with the trail justice that the defendant failed to apprise plaintiff of viable alternatives.

  81. 81.

     Crisp v. Keng NSW (Common Law Division), Wood J, 2 December 1992, unreported, BC9201449, at [109], [110] (emphasis added).

  82. 82.

     Crisp v. Keng NSW (Common Law Division), Wood J, 2 December 1992, unreported, BC9201449, at [109], [110].

  83. 83.

     Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information).

  84. 84.

     Harrison v. U.S., 233 F.Supp.2d 128, 134 (D. Mass., 2002).

  85. 85.

     Harrison v. U.S., 233F.Supp.2d 128, 134 (D. Mass., 2002) (emphasis added).

  86. 86.

     Harrison v. U.S., 233 F.Supp.2d 128, 134 (D. Mass., 2002).

  87. 87.

     Ben Sones (2006). See also, Joan H. Krause (1999), 368.

  88. 88.

     For example, Aaron D. Twerski and Neil B. Cohen (1992), 9 (noting that “Where the plaintiff alleges that the doctor was negligent for choosing a given surgical procedure in light of the patient’s risk profile, it is likely that a physician will have considered many of the factors in her own impressionistic judgment to recommend the procedure. If the doctor’s rationale was sufficient to overcome her own ex ante internal evaluation of the risk factors, it is likely to be equally convincing in the context of ex post external review at trial in which the statistical information is considered. … [U]nless the doctor’s impressionistic evaluation is substantially off the mark, it is unlikely that the statistical data, even though more precise, will convince a jury that the doctor’s risk valuation was negligent.”(emphasis added)).

  89. 89.

     Wilson v. Swanson (1956), 5 D.L.R. (2d) 113, 120.

  90. 90.

     There is a long-standing honoured distinction between error of judgment and negligence. Although these two concepts may overlap, they are different. The relationship between error of judgment and negligence has been described as: (1) an error of judgment may be negligent, depending on the circumstances; (2) an error of judgment is not necessarily negligence; (3) an error of judgment is a valid defence, only if it is an error made by a doctor exercising reasonable care. See, Pelletier v. Stewart, 2005 ABQB 484, at [11]. See also, McHugh v. Audet, 72 F. Supp. 394, 399 (D.C.PA. 1947) (“Where a physician or surgeon exercises such ordinary care and skill keeping within recognized and approved methods he is not liable for the result of a mere mistake or error of enlightened judgment. There is no responsibility for an error of judgment unless it be so gross as to be inconsistent with the degree of skill which it is the duty of every physician to possess.”).

  91. 91.

     Pelletier v. Stewart, 2005 ABQB 484, at [28].

  92. 92.

     Pelletier v. Stewart, 2005 ABQB 484, at [11]. See also, USA: McHugh v. Audet, 72 F. Supp. 394, 400 (D.C.PA. 1947) (“A physician is not an insurer of the health of his patient. The fact that an unfortunate result follows the use of a recognized method does not make out a prima facie case of malpractice against the physician or surgeon who makes the choice.”); Australia: Dunning v. Scheibner, NSW (Common Law Division), Wood J, 15 February 1994, unreported, BC9402391, at [76], [77] (“For an express warranty to that effect to be found, there would need, in my view, to be a very clear and specific promise on the part of the medical practitioner, which was understood by the patient as such.”); Crisp v. Keng NSW (Common Law Division), Wood J, 2 December 1992, unreported, BC9201449, at [111] (“There is no expectation that surgery, whether it be spinal surgery or otherwise, will be invariably successful. It would be a serious mistake to approach this field of professional negligence upon the basis that upon proof of a particular surgical procedure being unsuccessful, negligence is automatically established.”).

  93. 93.

     Lapointe v. Hôpital LeGardeur (1992), 90 D.L.R. (4th) 7, 14.

  94. 94.

     Turkington v. Lai, 52 C.C.L.T. (3d) 254, 273, at [71] (Ont. S. C. J.).

  95. 95.

     Gala v. Hamilton, 715 A.2d 1108, 1115 (Pa., 1998) (Nigro Justice, dissenting).

  96. 96.

     Other jurisdictions have similar doctrines. For example, Tennessee: O’Neill v. Kiledjian, 511 F.2d 511, 513 (C.A.Tenn. 1975) (“a doctor will not be held responsible for the exercise of his professional judgment in the selection of one method of treatment over another when both alternatives have the support of a considerable body of competent medical opinion in the community”); Arizona: Borja v. Phoenix General Hosp., Inc., 727 P.2d 355, 357–358 (Ariz. App.,1986) (“a doctor does not commit malpractice simply because he employs a method of diagnosis or a course of treatment some doctors do not find efficacious. So long as a respectable minority of physicians approve the disputed technique and so long as the defending doctor properly employed that technique, he has not fallen below the standard of care.”); Missouri: Haase v. Garfinkel, 418 S.W.2d 108 (Mo.1967) (“as long as there is room for an honest difference of opinion among competent physicians, a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken.”); Arkansas: Rickett v. Hayes, 511 S.W.2d 187, 195 (Ark. 1974) (“Where a physician or surgeon, in the exercise of his best judgment, follows an alternative course of treatment sanctioned and approved by competent medical authority, he cannot be held liable because he failed to pursue another and different course.”); Connecticut: Wasfi v. Chaddha, 588 A.2d 204, 209 (Conn., 1991) (noting that physicians may choose between alternative acceptable methods without incurring liability solely because that choice may have led to an unfortunate result); Washington: Gruginski v. Lane, 30 P.2d 970, 971 (Wash. 1934) (“the mere fact that a bad result followed was not of itself evidence of negligence on the part of the appellant. We also recognize the rule that, if the treatment actually employed had the approval of at least a respectable minority of the medical profession and was recognized by such as a proper method, there would not be negligence.”).

  97. 97.

       Jones v. Chidester, 610 A.2d 964, 969 (Pa., 1992).

  98. 98.

     Jones v. Chidester, 610 A.2d 964, 965 (Pa., 1992) (emphasis added).

  99. 99.

     Jones v. Chidester, 610 A.2d 964, 969 (Pa., 1992).

  100. 100.

     Jones v. Chidester, 610 A.2d 964, 969 (Pa., 1992).

  101. 101.

     Jones v. Chidester, 610 A.2d 964, 965 (Pa., 1992).

  102. 102.

     Remley v. Plummer, 79 Pa.Super. 117, 121–123; 1922 WL 2863, 3 (Pa.Super. 1922).

  103. 103.

     Colangeli v. Pallone, 63 Pa. D. & C.4th 386, 390 (Pa.Com.Pl. 2). See also, Gala v. Hamilton, 715 A.2d 1108,1115 (Pa.,1998) (Nigro, Justice, dissenting) (“The doctrine is rooted in the principle that juries, with their limited medical knowledge, should not be forced to decide which of two acceptable treatments a defendant physician should have performed.”); D’Angelis v. Zakuto, 556 A.2d 431, 433 (Pa.Super.,1989) (the purpose underlying the doctrine is “to remove from the jury’s discretion those matters requiring medical expertise, and on which medical experts disagree among themselves”).

  104. 104.

     Remley v. Plummer, 79 Pa.Super. 117, 121–123; 1922 WL 2863, 3–4 (Pa.Super. 1922) (“[A] reputable physician should not be subjected to the risk of loss of his professional standing and the payment of damages” because in the exercise of his best judgment he followed one school of thought rather than another.).

  105. 105.

     Joseph H. King, Jr. (1999), 58 (“The science of healing is dynamic, subject to continuing change and scientific advances. Going hand in hand with this dynamism is an inherent pluralism in medicine – a scientific world characterized by multiple therapeutic approaches to a medical problem all of which may command respect within at least some significant segment of the medical profession.”).

  106. 106.

     California Civil Jury Instruction (BAJI) 6.03. See also, BAJI instruction 214-A, California Jury Instructions, Civil, 4th Revised Edition.

  107. 107.

     Barton v. Owen, 71 Cal.App.3d 484, 501–502 (Cal.App.2.Dist. 1977).

  108. 108.

     Fraijo v. Hartland Hospital, 99 Cal.App.3d 331, 342–344 (Cal. App. 2.Dist. 1979) (agreeing that the trial court properly tailored the two instructions (BAJI 6.02 and 6.03), ordinarily applicable only to physicians and surgeons, to apply also to nurses; reasoning that: “If standard medical practice permits physicians to confer upon nurses in certain medical situations the exercise of independent judgment, nurses in those situations must be accorded the potential benefits to be derived from BAJI Nos. 6.02 and 6.03. To hold otherwise would impose upon nurses a standard of care exceeding that applicable to the medical profession, hardly a fair result.”) (BAJI 6.02 is the “error in judgment” instruction, which “tells the jury that an error in medical judgment is not considered in a vacuum but must be weighed in terms of the professional standard of care”.).

  109. 109.

    109 Bolam v. Friern Hospital Committee [1957] 2 All E.R. 118,122 (“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”).

  110. 110.

     Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, 121 (quoting Scottish case Hunter v. Hanley [1955] S.L.T. 213, 217). See also, Maynard v. West Midlands Regional Health Authority [1985] 1 W.L.R. 685, 638, per Lord Scarman (“Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.”); Rogers v. Whitaker (1992) 175 C.L.R. 479, 484 (HCA).

  111. 111.

     Maynard v. West Midlands Regional Health Authority [1985] 1 W.L.R. 685, 638, per Lord Scarman (“It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”).

  112. 112.

     Sidaway v. Bethlem Royal Hospital Governors [1985] AC 871, 892–893 (Lord Diplock) and 897 C (Lord Bridge).

  113. 113.

     Bolitho v. City and Hackney HA [1997] 4 All ER 771, 778.

  114. 114.

     Bolitho v. City and Hackney HA [1997] 4 All ER 771, 779 (“In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion…. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence.”).

  115. 115.

     Dunne (an infant) v. National Maternity Hospital [1989] IR 91, 109, per Finlay C.J. (“An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent”; “It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.”).

  116. 116.

     Honisz v. Lothian Health Board & Ors [2006] ScotCS CSOH_24, at [39].

  117. 117.

     Bauer v. Seager et al., [2000] 11 W.W.R. 621, 676–680 (Man. Q. B.) (“There is a ‘respectable minority’ principle which says that if a doctor acts in accordance with a respectable body of opinion (that is, a respectable minority of the profession), even though it is not the opinion of the majority, he or she will normally be absolved from liability.”; “The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects; courts should not involve themselves in resolving scientific disputes which require the expertise of the profession.”); Sharp v. Hurlbert, 2007 CarswellAlta 464, 2007 ABQB 221, 76 Alta. L.R. (4th) 142, [2007] 9 W.W.R. 657, at [30] (“Where expert evidence establishes that there is more than one recognized and accepted body of medical opinion, a physician is not negligent if he or she adhered to one accepted school of thought.”).

  118. 118.

     Civil Liability Act 2 (Qld), s 22(1) (2) (3) (4); Civil Liability Act 2002 (Tas), s 22; Civil Liability Act 2002 (WA), s 5 PB; Civil Liability Act 1936 (SA), s 41; Civil Liability Act 2002 (NSW), s 5O.

  119. 119.

     Honisz v. Lothian Health Board & Ors [2006] ScotCS CSOH_24, at [39], per Lord Hodge. This opinion has been frequently quoted by other cases, for example, Lowe v. Yorkhill NHS Trust [2007] ScotCS CSOH_111, at [107]; Dineley V. Lothian Health Board [2007] ScotCS CSOH_154, at [37]; Scott v. Lothian University Hospitals NHS Trust [2006] ScotCS CSOH_92, at [35]; McEwan v. Ayrshire & Arran Acute Hospitals NHS Trust [2009] ScotCS CSOH_22, at [232]; McColm v. Borders General Hospital NHS Trust [2006] ScotSC 59, at [313].

  120. 120.

     Finch v. Carpenter, 1993 CanLII 1240 (BC S.C.).

  121. 121.

     Richards v. Rahilly [2005] NSWSC 352, at [230] (citing Eagle v. Prosser [1999] NSWCA 166).

  122. 122.

     Richards v. Rahilly [2005] NSWSC 352, at [230] (citing Eagle v. Prosser [1999] NSWCA 166).

  123. 123.

     Groves v. Morton, 44 C.C.L.T. (3d) 108 (Ont. S. C. J.).

  124. 124.

     SEM v. The Mid Yorkshire Hospitals NHS Trust [2005] EWHC B3 (QB) (The High Court rightly distinguished the context of information disclosure and that of a doctor’s personalised recommendation. On the one hand, the defendant admitted, and the court acknowledged, that the defendant should let the patient know a menu of treatment options, not just the treatment option actually proposed and performed by the defendant. On the other hand, after admitting that the defendant was negligent in not advising other treatment options, the court’s focus shifted to appropriateness of the defendant’s recommendation and reasonableness of the patient’s response to that recommendation.); Tan v. Benkovic [2000] NSWCA 295 (Mason P, 26 October 2000, unreported, BC200006724) (distinguished the context of recommendation or even persuasion from the context of information disclosure).

  125. 125.

     American Medical Association, Code of Medical Ethics Opinion 8.08 (Issued March 1981; Updated November 2006) at <http://www.ama-assn.org/ama1/pub/upload/mm/Code_of_Med_Eth/opinion/opinion808.html> (Last accessed 24 July 2009) (“The physician’s obligation is to present the medical facts accurately to the patient or to the individual responsible for the patient’s care and to make recommendations for management in accordance with good medical practice. The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.” (emphasis added)).

  126. 126.

     Sicard v. Sendziak, 2008 ABQB 690, at [111] (Court of Queen’s Bench of Alberta).

  127. 127.

     Bauer v. Seager et al., [2000] 11 W.W.R. 621, 672, at [39] (Man. Q. B.).

  128. 128.

     Harnish v. Children’s Hosp. Med. Center, 439 N.E.2d 240, 243 (Mass. 1982).

  129. 129.

     Zaiffdeen v. Chua, 2004 ABQB 331, [2005] 358 A.R. 274 (Court of Queen’s Bench of Alberta), at [37]–[38]; Zaiffdeen v. Chua, 2005 ABCA 290; [2006] 380 A.R. 200 (Court of Appeal of Alberta), at [21] (In these cases, there were two treatment options for the patient’s condition: drug treatment or surgery. These options fell within a progressive scale, with surgery being the most severe, and drug treatment being the conservative option. However, the defendant doctor presented drug treatment on an equal footing to surgical treatment. Both the trial court and the Court of Appeal found the doctor breached the standard of care by failing to disclose the various treatment options in the proper perspective.).

  130. 130.

     Zaiffdeen v. Chua, 2004 ABQB 331, [2005] 358 A.R. 274 (Court of Queen’s Bench of Alberta), at [37]–[38]; Zaiffdeen v. Chua, 2005 ABCA 290; [2006] 380 A.R. 200 (Court of Appeal of Alberta), at [21].

  131. 131.

     Lynn G. v. Hugo, 710 N.Y.S.2d 334, 338 (A.D. 1 Dept. 2000). It involves cosmetic surgeries and a patient suffering from Body Dysmorphic Disorder (a disproportionate preoccupation with minor or imaginary physical flaws). The patient’s identification of the problem and dissatisfaction with her body may be a matter of personal taste, motivated by subjective vanity rather than objective physical impairment. The patient’s mental state affected her ability to assess the risks and benefits of elective cosmetic surgery because persons with this disorder have irrationally exaggerated perceptions of their bodily imperfections.

  132. 132.

     Lynn G. v. Hugo, 710 N.Y.S.2d 334, 338 (A.D. 1 Dept. 2000). But compare, an Australian case Tan v. Benkovic [2000] NSWCA 295 (Mason P, 26 October 2000, unreported, BC200006724). The Australian case also involved a patient who “was anxious to improve her appearance through cosmetic surgery and was, to that extent, in a dependant and vulnerable position.” Faced with such an eager patient, the appellant-doctor did not choose to cool her down by highlighting the dark side of cosmetic surgery, but encouraged her to undergo the cosmetic surgery with pleasant promises and persuasive “blandishments”. Although the appellant-surgeon was found negligent in not informing his patient of full range of risks inherent in the cosmetic surgery, the court did not find it improper for the appellant to encourage his patient to proceed with the facelift that she was anxious to obtain. The court’s reasoning was basically patient-autonomy-controlled, noting that it was improper to treat a patient as lacking autonomy. It needs to be noted that, in this case, the appellant-surgeon was alleged to have paid inadequate attention to the threshold matter of whether the patient was a psychologically appropriate candidate for a cosmetic plastic surgery procedure. This invites discussing a wider topic about women and cosmetic surgery. Feminist scholars argue that “the regulation of cosmetic surgery, instead of simply applying professional and clinical standards of excellence, ought to look beyond such ‘technical’ considerations and heed the cultural and societal pressures that drive women to seek these interventions”. See, Melanie Latham 2008, 440.

  133. 133.

     Richards v. Rahilly [2005] NSWSC 352, at [233]–[234].

  134. 134.

     Richards v. Rahilly [2005] NSWSC 352, at [234].

  135. 135.

     Tan v. Benkovic [2000] NSWCA 295 (Mason P, 26 October 2000, unreported, BC200006724), at [19]–[20] (making a distinction between “the realm of professional practice and conduct and the realm of morality”, on the one hand, and “the realm of the tort of negligence”, on the other). This Australian case explores the appropriateness of a surgeon’s persuasion for an elective cosmetic surgery in the context of aggravated damages and exemplary damages. Although the appellant-surgeon was found negligent in not informing his patient of full range of risks surrounding the cosmetic surgery, the court concluded that the appellant did not act improperly in encouraging his eager patient to undergo cosmetic surgery. The court acknowledged the subjective and individualized nature of giving recommendation and gave a medical professional a substantial allowance to express his or her personal views.

  136. 136.

     SEM v. The Mid Yorkshire Hospitals NHS Trust [2005] EWHC B3 (QB), at [39] (emphasis added). In this case, the patient suffered from a somatoform disorder. A consultant urogynaecologist and obstetrician proposed and performed a surgical procedure which comprised a vaginal hysterectomy, McCall’s culdoplasty, and anterior and posterior repair of the vaginal walls. McCall’s procedure involves tying the utero-sacral ligaments into the vault of the vagina using non-absorbable sutures: the object is to prevent future prolapse. Sadly the hysterectomy did nothing to solve her problems. It had been established that, in addition to the vaginal hysterectomy with McCall’s procedure, there were five options, two non-surgical alternatives and three surgical alternatives, that should have been disclosed by the defendant to the plaintiff. The two non-surgical alternatives are: (1) doing nothing, apart from reassurance and physiotherapy; (2) the use of medical devices, such as ring or Hodge pessaries. The three viable surgical alternatives are: (1) merely repairing the anterior wall of the vagina (anterior repair); (2) the so-called Manchester-Fothergill operation (its availability “is dependant on the surgical expertise of the surgeon”); (3) vaginal hysterectomy and anterior repair, i.e. without McCall’s procedure. This High Court (Queen’s Bench) case highlighted how a practitioner, by expressing qualifications, can and has to recommend the only one treatment option s/he preferred from “a menu” of treatment options offered, giving due weight to his or her own personal and particular views and experiences (see Appendix 1).

  137. 137.

     SEM v. The Mid Yorkshire Hospitals NHS Trust [2005] EWHC B3 (QB), at [39] (emphasis added) (“The question ‘what would you do, doctor?’ is frequently asked and has to be answered.”).

  138. 138.

     SEM v. The Mid Yorkshire Hospitals NHS Trust [2005] EWHC B3 (QB), at [50].

  139. 139.

     Truman v. Thomas 611 P.2d 902, 906–907 (Cal. 1980) (A physician failed to inform a patient of the material risks of not submitting to a recommended pap smear, i.e. the potentially fatal consequences of allowing cervical cancer to develop undetected by a pap smear; the Supreme Court of California supported the opinion that a patient must be apprised not only of the risks inherent in the proposed procedure, but also the risks of a decision not to undergo the treatment or a diagnostic test; to reinforce the need of disclosure in the instant case, the Court highlighted the following facts: (1) the pap smear test is “an accurate detector” of cervical cancer; (2) the potential harm of failing to detect the disease at an early stage is death; (3) there was no evidence that the plaintiff was aware of the serious danger entailed in not undergoing the test; (4) the defendant knew that the plaintiff would not undergo the test.); Elbourne v. Gibbs [2006] NSWCA 127 (Beazley, Ipp and Basten JJA, 24 May 2006, unreported, BC200603589), at [57] (“it is nevertheless important to see the identification of material risks in context. Thus, a medical practitioner is required not only to identify the risks involved in a particular treatment or procedure, but also the need for the procedure and the possible risks attendant on a failure to undergo that which the practitioner is recommending. It is only with that knowledge, that the patient can sensibly address the relevance and magnitude of the particular risks.”(emphasis added)); per Basten JA (noting that in the present case “the doctor gave evidence that a ‘wait and see policy’ was not an appropriate option, and would have been rejected by him as ‘irresponsible in the extreme’” (at [58])). But compare, Landon v. Zorn, 884 A.2d 142, 156 (Md., 2005) (the doctor recommended a diagnostic test, but the patient refused to submit to that test; the patient argued that he was never advised of any potential risks associated with not having a CAT scan, specifically the fact that failure to submit to the CAT scan could have life-threatening consequences for him; the court held that the informed consent rule exists only where the injury suffered arises from an affirmative act on the patient, or affirmative violation of the patient’s physical integrity).

  140. 140.

     Jocelyn Downie, Timothy Caulfield and Colleen Flood (2002), 130 (warning that doctors may use information to purposely manipulate a patient’s decision, or simply for the purpose of persuading patients to agree to treatments or to medical goals the doctors have determined to be in the patient’s best interests).

  141. 141.

     Al Hamwi v. Johnston, The North West London Hospitals NHS Trust [2005] EWHC 206; [2005] Lloyd’s Rep Med 309, para. [44], per Simon J.

  142. 142.

     Attwell v. McPartlin [2004] EWHC 829, para. [60] (emphasis added) (adding that “[s]ome doctors may wish to make an effort to persuade a reluctant patient to act in what the doctor sees as the patient’s best interests; some doctors may even feel the need to adopt an overbearing or bullying attitude in order to secure compliance. But, in the end, in the ordinary case it is for the professional to advise and for the patient … to decide.”).

  143. 143.

     Attwell v. McPartlin [2004] EWHC 829, para. [60].

  144. 144.

     See, General Medical Council (UK) Consent: Patients and Doctors Making Decisions Together (2008), para. 19 at <www.gmc-uk.org> (Last accessed 24 April 2010) (“You should give information to patients in a balanced way. If you recommend a particular treatment or course of action, you should explain your reasons for doing so. But you must not put pressure on a patient to accept your advice.”).

  145. 145.

     Alasdair Maclean (2009), 180–181 (citing Thompson v. Bradford [2004] EWHC 2424).

  146. 146.

     Niblack v. U.S., 438F. Supp. 383, 388 (D.C.Colo. 1977).

  147. 147.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 484 (Cal. 1990) (defendants using a patient’s cells in potentially lucrative medical research without the patient’s permission; the Supreme Court of California (majority) supporting causes of action based on lack of informed consent and breach of fiduciary duty, but not on conversion). However, there was dissenting opinion which observed that the nondisclosure cause of action was not an adequate substitute for a conversion cause of action. See, Moore v. The Regents of the Univ. of California, 793 P.2d 479, 519–521 (Cal. 1990) (Mosk Justice, dissenting).

  148. 148.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 484 (Cal. 1990).

  149. 149.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 484 (Cal. 1990).

  150. 150.

     Pegram v. Herdrich, 530 U.S. 211, 219 (U.S., 2000) (noting that the physician incentives under HMOs model reward physicians for decreasing utilization of health-care services, and penalize them for excessive treatment); American Medical Association, The Council on Ethical and Judicial Affairs Report 13 – A-94 Ethical Issues in Managed Care (1994–1995), p. 6 (opining that incentives to limit care are more problematic than incentives to provide care).

  151. 151.

     D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn. App., 1997).

  152. 152.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 483 (Cal. 1990) (further adding that “a physician’s failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty”(emphasis added)). However, the Court acknowledged that “[i]n some cases, … a physician’s research interest might play such an insignificant role in the decision to recommend a medically indicated procedure that disclosure should not be required because the interest is not material”(emphasis added). This concession was made in the context of avoiding excessive disclosure to harm the patient (therapeutic privileges). See, Moore v. The Regents of the Univ. of California, 793 P.2d 479, 485 (Cal. 1990), footnote 9.

  153. 153.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 485 (Cal. 1990), footnote 9.

  154. 154.

     Shea v. Esensten (Shea II), 208 F.3d 712 (8th Cir. 2000) (the plaintiff claimed that the defendants’ failure to disclose a financial incentive caused the patient the independent injury of having been prevented from making an informed choice of whether to seek what might have been a life-saving referral at his own expense).

  155. 155.

     D.A.B. v. Brown, 570 N.W.2d 168 (Minn. App., 1997) (patients arguing that physician, manufacturer, and distributor failed to disclose the kickback scheme; the court holding that the doctor’s duty to disclose the kickback scheme “presents a classic informed consent issue”).

  156. 156.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 483 (Cal. 1990). The Supreme Court of California was not persuaded by the argument that “[t]o require disclosure of research and economic interests may corrupt the patient’s own judgment by distracting him from the requirements of his health”. See, Moore v. The Regents of the Univ. of California, 793 P.2d 479, 484–485 (Cal. 1990).

  157. 157.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 484 (Cal. 1990).

  158. 158.

     Moore v. The Regents of the Univ. of California, 793 P.2d 479, 484 (Cal. 1990).

  159. 159.

     Even if a plaintiff claimed that the medical practitioner fraudulently induced her into consenting to elective surgery by misrepresenting his experience and training and misrepresenting the merits and demerits of the proposed procedure, it seems that some courts still favoured the doctor-friendly informed consent claim (malpractice claim) rather than the fraud claim, because, in the eye of the court, those representations are relevant to the question of “whether [the defendant’s] selection of the surgical procedure and performance of it met the standard of care for doctors in such circumstances and whether he adequately disclosed the risks of the surgical procedure to her”. See, Theroux v. Vick, 163 S.W.3d 111, 114 (Tex. App.-San Antonio, 2005).

  160. 160.

     Thibault v. Fewer, [2002] 1 W.W.R. 204, 217–218.

  161. 161.

     Turkington v. Lai, 52 C.C.L.T. (3d) 254, 272–274 (Ont. S. C. J.).

  162. 162.

     Bauer v. Seager et al., [2000] 11 W.W.R. 621, 672–673, at [39]–[41] (Man. Q. B.).

  163. 163.

     Archer v. Galbraith, 567 P.2d 1155, 1158 (Wash.App. 1977) (emphasis added).

  164. 164.

     KL v. Farnsworth [2002] NSWSC 382, at [137] (In this case, the differences between two alternative methods were presented by the doctor to be no more than “cosmetic”.).

  165. 165.

     KL v. Farnsworth [2002] NSWSC 382, at [133].

  166. 166.

     Opinion 01/05619 (Health and Disability Commissioner, 31/7/2002) (failure to provide balanced information about alternatives).

  167. 167.

     KL v. Farnsworth [2002] NSWSC 382, at [136].

  168. 168.

     Nattrass v. Weber, 2007 ABQB 577; 53 C.C.L.T. 105, 118, at [39] (Alta. Q. B.); Nattrass v. Weber, 2008 ABQB 259, at [391] (citing Seney v. Crooks, 1998 ABCA 316 at para. 55; 223 A.R. 145); Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 354, at [64] (“[T]he mere fact that a doctor prefers one treatment over another does not relieve him of the obligation to advise of other acceptable and known procedures.”).

  169. 169.

     Martin by Scoptur v. Richards, 531 N.W.2d 70, 81 (Wis. 1995) (“It may well be a “medical decision” under these circumstances to decide not to do a CT scan, or to decide not to hospitalize the patient in a hospital that can treat an intracranial bleed if it should occur. The statute on its face says, however, that the patient has the right to know, with some exceptions, that there are alternatives available.”(emphasis added)).

  170. 170.

     Marino v. Ballestas, 749 F. 2d 162, 168 (3d Cir 1984) (emphasis added).

  171. 171.

     Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 353, at [60].

  172. 172.

     Seney v. Crooks (1998), 166 D.L.R. (4th) 337, 353, at [60].

  173. 173.

     Matthies v. Mastromonaco, 733 A. 2d 456, 462 (N. J. 1999) (concerning alternatives that the physician does not recommend, the plaintiff alleging that the doctor did not inform her of the riskier, but potentially more successful, alternative of surgery).

  174. 174.

     Matthies v. Mastromonaco, 733 A. 2d 456, 462 (N. J. 1999).

  175. 175.

     Downer v. Veilleux, 322 A.2d 82, 90–91 (Me. 1974).

  176. 176.

     Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information); Opinion 04HDC01 (Health and Disability Commissioner, 24/2/2005) (Orthopaedic surgeon’s failure to inform his patient of the option he did not favor).

  177. 177.

     Opinion 04HDC01 (Health and Disability Commissioner, 24/2/2005) (Orthopaedic surgeon’s failure to inform his patient of the option he did not favor).

  178. 178.

     Opinion 01HDC00755 (Health and Disability Commissioner, 9/5/2) (failure to inform surgical weight loss options).

  179. 179.

     Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions).

  180. 180.

     Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions).

  181. 181.

     Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information).

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  1. Department of Law College of Social Science and Humanities, Shandong University of Traditional Chinese Medicine, Jinan, P.R. China

    Xiju Zhao

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Zhao, X. (2012). Disclosure of Alternatives: In a Wide Context. In: The Duty of Medical Practitioners and CAM/TCM Practitioners to Inform Competent Adult Patients about Alternatives. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31647-0_3

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