The Expansion of Liability for Medical Accidents: From Negligence to Strict Liability by Way of Informed Consent

This article examines the various ways in which the courts have been fashioning rules of liability for medical accidents that add up to an incipient system of strict liability. The obvious judicial circumlocutions, which appear necessitated by the inability of the courts under existing rules of law to award compensation to severely injured medical-accident victims, are the main area of concern, not the routine application of well-established general principles to novel situations of fact. I. Introduction II. The War on Negligence III. The Fault System and Medical Accidents: The Gathering Storm IV. Informed Consent … A. The Law of Consent to Medical Treatment … B. The Affirmative Duty of Disclosure … 1. The Origins of the Physician's Obligation to Disclose Information … 2. The "Classical" Elements of the Duty to Disclose … 3. Informed Consent in the 1960's—A Paper Tiger … C. Expanding Liability in the Wake of Canterbury v. Spence … 1. The Standard of Disclosure … 2. Therapeutic Privilege … 3. Causation … D. Disclosure or Understanding: The Next Assault? … E. Informed Consent and Strict Liability V. The Head-On Assault of the Citadel VI. Strict Liability and the Doctor-Patient Relationship VII. Conclusion