Spock, Feminists, and the Fight for Participatory Medicine

A History

Michael L. Millenson


J Participat Med. 2012;3 

In This Article

The History of Informed Consent

Patient-centered care and participatory medicine would emerge to focus on the overall relationship between doctor and patient. Before that could happen, however, patients had to establish the elementary right to be treated with respect at one defining point in that relationship — when the doctor is recommending a specific treatment. It took an extended series of lawsuits and court rulings that began in the horse-and-buggy era of the 20th century and extended well after man had landed on the moon to establish a patient's simple right to be told clearly in advance of a procedure its risks and its benefits.

The fight began at the start of the 20th century with a Supreme Court case involving 40-year-old Parmelia Davis, an epileptic whose surgeon removed her uterus and ovaries without informing Davis of his intentions. In the best tradition of "caring custody," the surgeon later explained he had deceived his patient so she would not refuse the operation. Unless the patient expressly limits what the doctor can do, the surgeon's attorneys argued, "she thereby in law consents that he may perform such operation as in his best judgment is proper and essential to her welfare.[a]"

The Supreme Court emphatically disagreed. In a 1905 opinion, the Court declared that Americans' rights as free citizens prohibited "a physician or surgeon, however skillful or eminent…to violate without permission the bodily integrity of his patient…and [to operate] on him without his consent or knowledge." In a 1914 Supreme Court decision involving a similar case with a patient named Mary Schloendorff, Justice Benjamin Cardozo famously added, "A surgeon who performs an operation without his patient's consent commits an assault."[6]

Despite these rulings, it was not until the late 1950s that patients acquired the right to be told not only what the doctor was going to do, but also that action's possible positive and negative effects. The requirement for "informed consent" resulted from a lawsuit filed by 55-year-old Martin Salgo, whose legs were left paralyzed following a hospital diagnostic procedure. Salgo claimed his doctors were legally liable for not warning him of that risk. In 1957, the California Court of Appeals agreed, writing: "A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment."[6] That ruling was subsequently broadened in other cases.

Yet it was not until 1972 that physicians were required to specifically disclose the risks in language the patient could actually understand. The U.S. Court of Appeals decision involved a 19-year-old boy left paralyzed after a laminectomy for back pain in early 1959. The ruling explicitly cited the earlier Supreme Court declaration that "every human being of adult years and sound mind has a right to determine what shall be done with his own body."[7] Also in 1972, the California Supreme Court declared that the "scope of the disclosure required of physicians defies simple definition" and must therefore "be measured by the patient's need, and that need is whatever information is material to the decision."[8]

Just how far patients had come from the beginning of the 20th century to its end could be seen in a Wisconsin law requiring not just disclosure of possible complications, but "the availability of all alternate, viable medical modes of treatment." The Wisconsin Supreme Court cited that statute in a 1996 ruling that the physician being sued should have "made the plaintiff aware of the alternative of lower risk surgery with a different, more experienced surgeon in a better-equipped facility."[9]

Of course, a balanced, fair, and understandable discussion with the patient about what the doctor wanted to do was still not the same thing as explicitly factoring in the patient's beliefs and values into the recommendation in the first place. That required a different kind of relationship. Spock had told the AMA that "the baby will be a better judge than mother or pediatrician" of his needs.[2] Now the Spock babies had grown up and were applying that same mindset to adult medicine.