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67 Vill. L. Rev. 509 (2022)
Making an Offer That Can't Be Refused: The Need for Reform in the Rules Governing Informed Consent and Doctor-Patient Agreements

handle is hein.journals/vllalr67 and id is 529 raw text is: 2022] MAKING AN OFFER THAT CAN'T BE REFUSED: THE NEED FOR REFORM IN THE RULES GOVERNING INFORMED CONSENT AND DOCTOR-PATIENT AGREEMENTS TIMOTHY C. MACDONNELL* ABSTRACT On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doc- tors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their health- care based on the facts related to their particular situation. However, fre- quently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare prov- iders to care for the patient under the doctor's supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a take-it-or-leave-it basis. This approach to informed consent is wholly wrong and harmful to the trust necessary to the doctor-patient relationship. The doctrine of in- formed consent is intended to aid and empower patients when making healthcare decisions, not benefit doctors and hospitals. The practice de- scribed above, requiring patients to sign consent forms that benefit doc- tors or hospitals, is contrary to various doctrines associated with contract law, fiduciary duties, and medical ethics. Further, this approach can inter- fere with the doctor-patient relationship. It can be argued that substituted caregiver terms serve important soci- etal interests. When viewed in the best light, substituted caregiver terms allow doctors, hospitals, and medical schools to train the next generation of doctors. When viewed from a different perspective, the terms benefit doctors and hospitals because the terms allow doctors and hospitals to make more money. Because the current approach to informed consent employed by some doctors and hospitals is inconsistent with concepts of fairness con- tained in contract law, fiduciary duties, medical ethics, and is destructive to the trust necessary to an effective doctor-patient relationship, this arti- cle proposes a different approach. This approach would require a clear delineation of the various documents in the doctor-patient relationship. These documents include: the contract; Health Insurance Portability and * Clinical Professor of Law and Director, Advanced Administrative Litigation Clinic (Black Lung), Washington & Lee University School of Law. I wish to extend my thanks to the individuals who provided their advice and suggestions regarding this Essay. Particularly, I would like to thank Dr. Kenneth F. MacDonnell and Dr. Sheila MacDonnell for their willingness to share their thoughts and perspectives as medical doctors. (509)