Medical Non-Disclosure and Hypothetical Consent

Abstract

The difference between battery and negligence with regard to the effect of hypothetical consent and its justification by the different degrees to which the non-disclosure of information by the doctor violates the patient's autonomy is discussed. Four situations of medical non-disclosure are examined and show that hypothetical informed consent should continue to exclude liability in negligence, provided that the doctor rather than the patient bears the legal burden of proof as to causation and that causation is determined by asking what the particular claimant, not the reasonable person would have done.