Minimizing malpractice risks by role clarification. The confusing transition from tort to contract.

Abstract

The purposes and applications of informed consent are the subject of confusion and controversy according to a President's Commission report. The Commission suggests shared decision making as the new ideal for physician-patient relationships, but notes that such a changed ideal will not be initiated by court action. The four models of decision making are the traditional model, informed consent, collaboration, and patient choice. Misunderstandings about these and other terms arise when they are implied; therefore, they should be defined expressly. Mutual expectations should be ascertained and common misunderstandings that erode relationships and lead to litigation should be clarified. Without agreements, different models may be selected and expectations about responsibility may differ. Such agreements may be documented by notes in patients' charts, supported by intake procedures that teach patients about defining responsibility, and questionnaires that elicit values, needs, and preferences. The literature on the evolution of contract principles in health care is reviewed, with informed consent viewed as a judicial stepping stone from tort to contract. A framework for defining mutual expectations is presented. Physicians' patterns of allocating responsibility by express and implied agreements should be evaluated and changes made where needed.