She brought an action against her surgeon for, inter alia, lack of informed consent. The allegation was based upon misinformation the surgeon provided to her regarding his experience in performing the procedure. Her surgeon apparently advised her that he had performed the surgery an average of once a month when, in fact, it appears he had performed it only five times in five years.

The trial court ruled this information was irrelevant to the doctrine of informed consent. The appellate court, however, found the information relevant to a patient’s making an informed decision and vacated the judgment entered in favor of the defendant and remanded the matter for a new trial. Duttry v. Patterson, 741 A.2d 199 (Pa. 1999).

The Pennsylvania court cited a case of first impression in Wisconsin on this evolving area of law, Johnson v. Kokemoor, 199 Wis.3d 615, 545 N.W.2d 495 (1996), which explicitly mandated the disclosure of physician-specific information regarding comparative risk data as well as disclosure of the availability of more experienced physicians. The doctrine of informed consent is relatively new, arising in the 1960s and 1970s in the spirit of the Karen Ann Quinlan coma case and the civil rights movement.

Hundreds of years ago, physicians were autonomous. Such paternalism was grounded in the doctor’s superior knowledge of medicine and the patient’s need for care. Since at least medieval times, communications between a physician and patient were necessary only to persuade the patient to follow the physician’s suggested method of treatment. Although the Hippocratic Oath has become a public pledge to preserve professional responsibilities, disclosure, consent or deference to a patient’s wishes are not mentioned.

But, today, with the advent of patient autonomy and self-determination, patients play a greater role in deciding what type of medical care is necessary. The basis for informed consent is that individuals may know better than physicians or others what best fits their personal values; therefore, following a patient’s wishes can result in a more beneficial outcome.

And in the wake of Johnson v. Kokemoor and its progeny, the scope of a physician’s duty of disclosure clearly is measured now by the patient’s needs and what is material to the patient in making a reasoned decision. That apparently includes data regarding just how "risky" or experienced a particular physician may be.

This area of law is becoming more visible as we witness the growth of elective surgery - from corrective eye surgery to liposuction, cosmetic face lifts to hair replacement. A recognition of the importance of informed consent becomes particularly apparent as the medical profession gets dragged to the "advertising dance." Sometimes it is difficult to differentiate a successful doctor and a successful marketer.

Patients are now, more than ever, being forced to discern the legitimate surgeon from one who is marginally qualified, overstates his or her credentials, or is a huckster. And if people had an appreciation of the risks and health compromises due to possible exposure to infection at some shopping mall surgery centers, compared to hospitals, they would think twice about ever stepping foot into one. It often boils down now to a matter of informed consent.

Illinois was one of the first states to recognize a patient’s right to informed consent. In Pratt v. Davis, 79 N.E.562 (Ill.1906), the plaintiff’s ovaries and uterus were removed without her approval. The court found that the physician’s unauthorized act constituted trespass to the person and that a battery had occurred, which was the theory generally relied upon in early lack-of-consent cases.

Gradually, case law began expressly basing informed consent liability on a negligence theory, a more burdensome theory for the plaintiff who needs to demonstrate more than a mere lack of consent to the procedure performed. The plaintiff also is required to show that he would not have consented to the medical treatment had he been adequately informed.

In Illinois, the doctrine of informed consent is not governed by statute, although it is mentioned as a possible cause of action under 735 ILCS 5/2-622(d), which requires certification upon filing a complaint that "the reviewing health professional has, after reviewing the medical record and other relevant materials involved in the particular action, concluded that a reasonable health professional would have informed the patient of the consequences of the procedure."

Illinois first recognized inadequate consent as a negligence cause of action in Green v. Hussey, 127 Ill.App.2d 174, 185, 262 N.E.2d 156 (1^st Dist. 1970). Casey v. Penn, 45 Ill.App.3d 1068, 1069, 362 N.E.2d 1373 (2d Dist. 1977), allowed the plaintiff to establish proximate causation by relying, not necessarily through experts, but on other "affirmative evidence," including the plaintiff’s own testimony.

Courts, though, recognized that such statements may be self-serving; and they began to utilize an objective test to determine what would a reasonably prudent person in the plaintiff’s position have decided if adequately informed of all significant perils. What goes into this decision includes the risks inherent in the procedure, the risks of a decision not to undergo treatment and the probability of a successful outcome of the treatment.

Many jurisdictions, including Illinois, Coryell v. Smith, 274 Ill.App.3d 543, 653 N.E.2d 1317 (1^st Dist. 1995), applying an objective standard and examine whether a reasonable patient would have altered his or her decision without the undisclosed information. That may now include statistics on physicians’ experience and success rates in performing certain procedures.

More than 80 years ago, Justice Benjamin Cardozo wrote that every adult "has a right to determine what shall be done with his own body . . ." Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914), overruled in part by Bing v. Thunic, 143 N.E.2d 3 (N.Y. 1957). Those words ring true today more than ever.

Informed consent clearly has moved from mere disclosure of risk and feasible alternatives to effective patient participation in medical decision-making. But to do so meaningfully means that the medical profession is just going to have to be more upfront, even when soliciting patients.