Rethinking Injury: The Case of Informed Consent

I. INTRODUCTIONIt is a longstanding question whether tort law is better understood as a system for allocating losses through compensation or as a process through which parties obtain formal recourse for wrongs done to them.1 The practical divergence between these two positions becomes particularly clear in the realm of "dignitary" torts such as battery. Compensation theory, the dominant view, has difficulty accounting for how the law permits claims in circumstances where no quantifiable physical injury has occurred. Some scholars have therefore suggested that such actions serve a theoretically distinct punitive or expressive purpose.2 Civil recourse theorists, on the other hand, argue that if we understand the unwanted touching itself as a form of wrong, then such a "harmless" battery is a completed, legally cognizable injury, theoretically no different from other types of torts.3 In this article I will take up the specific example of informed consent to show how the divisions created by this debate in tort theory have contributed to a flawed understanding of the concept of injury.Today's informed consent law has evolved with a hybrid of dignitary and compensatory purposes. Courts originally recognized patient claims against physicians who performed unauthorized procedures under battery law. But, starting in the mid-twentieth century, courts began to decide such cases under negligence. I will argue that this shift has resulted in a class of factually injured patients who have no remedy under current law, with consequences for our broader understanding of tort injury. The bright line between dignitary and bodily injuries imposed by compensation theory ignores the extent to which dignitary harms may constitute physical injuries. While civil recourse theory is better on this point, it too has problems. Most significantly, its concept of a "completed" injury inconsistently recognizes the expressive component of bodily torts. To understand the practical costs of inadequately defining injury, consider the story of one breast cancer patient.When Carolyn Alford arrived at the hospital on the morning she was to receive a biopsy on a lump in her breast, she asked her doctor if he thought the surgery would "go OK."4 She recalls that he replied, "Why, you'll be talking to your husband by 10 or even 10:30."5 According to Alford, the doctor said nothing to suggest the possibility of his performing a mastectomy. When she woke up to a burning pain stretching from her armpit down to her waist and a clock that read four o'clock, Alford "knew the worst had happened." 6 The surgeon had found a malignant tumor, though (according to Alford) one the size of a BB, which did not appear to have spread.7 With only her husband's permission, the surgeon removed Alford's breast, both pectoral muscles, chest wall, and the lymph glands under her arm.8 Beyond those losses, as Alford would subsequently testify to Congress, "I LOST CONTROL. Just because a person is put to sleep, he should not lose control of their [sic] life."9Alford's nightmare occurred in the early 1980s. This was before the start of a nation-wide lobbying effort to protect breast cancer patients from physicians performing mastectomies without providing information about other, less invasive options such as lumpectomies. At the time, because the mastectomy itself had been successful, Alford had no legal recourse for the fact that she was given inadequate information about the range of potential treatment options before going under. Due in part to an increased cultural concern for patient autonomy in the face of potential overreaching by doctors (including, in some states, legislation on informed decision-making10), stories as dramatic as Alford's are less frequent today, though still not eradicated.11 In fact, her testimony about loss of control serves to illustrate a type of harm commonly associated with a physician's failure to obtain a patient's informed consent, which today remains imperfectly protected by the tort regime. …