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Considerable controversy remains as to the level of risk disclosure required by the doctrine of informed consent. A state-by-state summary of prevailing judicial and, in a few states, legislative attitudes may be found in Ketchup v. Howard, 247 Ga. App. 54, 543 S.E.2d 371 (2000) (Appendix) $[Lexis] $[Westlaw].

Pain-related cases are particularly challenging because frequently they stray from the classic inquiry into whether risks associated with surgery were adequately disclosed to the patient. Instead, pain cases often involve choices between invasive and noninvasive procedures or between noninvasive options. Here, the position of the New Jersey Supreme Court is attractive:

"It is not dispositive that the alternative that the physician recommends is more or less invasive than other alternatives… The critical consideration is not the invasiveness of the procedure, but the patient's need for information to make a reasonable decision about the appropriate course of medical treatment, whether invasive or noninvasive."

Matthies v. Mastromonaco, 160 N.J. 26, 40, 733 A.2d 456 (1999) $[Lexis] $[Westlaw]. See also Truman v. Thomas, 611 P.2d 902 (Cal.1980) $[Lexis] $[Westlaw] (doctor had a duty to provide the decedent with all information material to her decision whether or not to undergo pap smear diagnostic test). Other courts, however, seem to disagree. For example, the Supreme Court of Pennsylvania has rules that informed consent is not required in cases involving non-surgical procedures, Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617 (1997) $[Lexis] .

Equally, courts are divided over a physician's responsibility to disclose his own or his institution's limitations; an issue that could be highly relevant given the lack of consistency in the provision of adequate pain management. See e.g., Johnson v. Kokemoor, 545 N.W.2d 495 (Wis. 1996). $[Lexis] $[Westlaw] (admitting evidence that surgeon should have advised patient of possibility of undergoing surgery at tertiary care facility with more experienced surgeon in better-equipped facility was properly admitted). Cf. Duttry v. Patterson, 771 A.2d 1255 (Pa. 2001) “…information personal to the physician, whether solicited by the patient or not, is irrelevant to the doctrine of informed consent. Our holding should not, however, be read to stand for the proposition that a physician who misleads a patient is immune from suit. Rather, we are merely stating that the doctrine of informed consent is not the legal panacea for all damages arising out of any type of malfeasance by a physician.” (reference omitted)

Pain-related cases

Branom v. State, 974 P.2d 335 (Wash. Ct. App. 1999). $[Lexis] $[Westlaw]
Summary: Plaintiff parents brought action against neonatologist for failure to inform parents of newborn's microcephaly and possibility of giving him only palliative care prior to obtaining parents' consent to bowel obstruction surgery on newborn. Held: Such an action could only be brought in the parents' representative capacity, such a duty not being owed to the parents in their personal capacity.

Schreiber v. Physicians Ins. Co. of Wisconsin, 223 Wis.2d 417, 588 N.W.2d 26 (1999) $[Lexis] $[Westlaw]
Summary: Physician's failure to conduct second informed consent discussion with patient and present her with available treatment options after she repeatedly advised him that she no longer wished to pursue vaginal delivery because of intense pain during prolonged labor, but instead wanted her child delivered by cesarean section, constituted violation of physician's duty to obtain patient's informed consent prior to continuing with vaginal delivery.

Arato v. Avedon, 5 Cal. 4th 1172, 858 P.2d 598, 23 Cal. Rptr. 2d 131 (1993) $[Lexis] $[Westlaw]
Summary: Court declined to require mandatory disclosure of life expectancy in case where doctor allegedly failed to discuss the low life expectancy of a patient suffering from pancreatic cancer.

Gemme v. Goldberg, 626 A.2d 318, 326 (Conn. App. Ct. 1993). $[Lexis] $[Westlaw]
Summary: Patient brought suit for medical malpractice and the Appellate Court held that alternative treatments should be disclosed even if the alternative is more hazardous.