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Informed Consent, Hospital, Institutional Liability, Trust


The role of hospitals in managing the informed consent process for hospital-based treatments has expanded substantially over the last several decades. Most recently, many hospitals have installed multi-media platforms designed to provide a patient with basic information about a recommended procedure, including its associated risks, and to record the patient’s consent to or rejection of the procedure. Yet, despite the substantial control that hospitals exercise over the informed consent process, state courts routinely dismiss informed consent claims brought against hospitals, holding that only physicians have the training and expertise to satisfy informed consent obligations and therefore that only physicians may be held liable for a breach of those obligations. While there is good reason to overturn the policy against imposing informed consent liability on hospitals, history suggests that it is unlikely to happen. Current law imposing such liability on physicians only has proven its staying power, persisting despite several developments in both health care and law that justify institutional liability. This Article argues that the survival of the policy against imposing informed consent liability on hospitals is both remarkable and mysterious. It then attempts to resolve the mystery by offering a trust-based explanation for the reluctance of courts to act.