B. Liability for Failure to Obtain Informed Consent

An alternative avenue of relief for some patients alleging biased medical decisions is an action claiming a failure to obtain informed consent. Informed consent doctrine generally requires that a physician, prior to providing any kind of therapeutic or diagnostic care to a patient, inform the patient as to the nature and purpose of the proposed care and any non-remote risks associated with the treatment. Courts initially treated a failure to obtain informed consent as a form of battery (since the patient had not consented to the physician's touching). Most jurisdictions today, however, treat informed consent claims as a form of medical malpractice in which the physician's disclosure to the patient is measured against the standard of care.

How could a biased medical decision give rise to an informed consent claim? Cases alleging biased medical decisions would not seem particularly likely to involve a total absence of patient consent, but might comprise a claim of inadequate physician disclosure. Specifically, in some cases the patient might assert that the physician, in recommending the proposed treatment, did not discuss other options. Informed consent doctrine requires a physician not only to advise the patient regarding the proposed treatment, but also to disclose the risks and benefits of viable alternative treatments or diagnostic options. In the hypothetical case of the cardiac patient discussed above, if the doctor failed to tell the patient *249 that other diagnostic tests were also available as follow-ups to the stress test, the patient could allege that the failure to make that disclosure was negligent.

The informed consent plaintiff, however, cannot recover simply by showing a negligent failure to disclose alternatives. He must also show causation by proving that if adequate disclosure had been made, he would have opted for an alternative diagnostic or treatment choice and would thereby have avoided injury. In other words, our cardiac patient would have to prove that if his doctor had described to him the riskier, higher tech diagnostic procedure, he would have demanded that intervention, rather than the one recommended by his doctor, and that as a result his heart attack would have been avoided. Thus, proving causation can be particularly challenging in an informed consent action. Moreover, recovery on a negligent disclosure claim (as with a negligent treatment claim) does not depend on any showing of bias, but only on the doctor's failure to conform to the standard of care. Consequently, even a plaintiff who can put forward the proof necessary to recover on a negligent disclosure claim is not directly vindicating his right to receive unbiased medical advice.