Brooklyn Law Review


This article suggests a reshaping of the doctrine of informed consent to accommodate the potential costs of choices vis-à-vis patients’ well-being. Applying insights from psychology and behavioral economics, it makes four main claims. First, the current doctrine imposes a broad duty of disclosure on physicians toward their patients, based on the premise that patients want and need to know all the alternative treatments for their ailment. We argue that this premise is misguided. The process of choice making is not cost free. Since patients incur costs when they must choose a treatment from too many alternatives, the current duty should be narrowed. Second, when a physician violates the duty of disclosure, the patient can recover damages only if he or she suffers resultant physical harm. However, since scientific evidence shows that patients draw benefits from the process of choosing their treatment, regardless of the treatment they ultimately choose, we argue that once the duty of disclosure is breached, the patient should be entitled to damages for the loss of this benefit even in the absence of any physical harm. Third, when courts award damages, the plaintiff is awarded full compensation for his or her physical harm. We argue that this compensation should be offset by the benefit caused by the physician’s breach of the duty to disclose, which is the cost associated with the process of choosing. Fourth and last, as the costs and benefits of choice making may differ from one patient to another, the doctrine should be sensitive to the preferences of the particular patient. Hence, we suggest that patients be offered the possibility of opting out of the extensive informed consent regime and be offered fewer alternatives if they wish.