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May 1986

Defensive Law: A New Perspective on Informed Consent

Author Affiliations

Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Ave New York, NY 10003-4391

Arch Intern Med. 1986;146(5):860-861. doi:10.1001/archinte.1986.00360170056005

A great many lawyers, including academic lawyers like myself, would like to believe that law is a resilient and responsive instrument of social policy, generally deferential to professional expertise on matters that call for such expertise, while insistent on its own necessary and desirable role in articulating, and sometimes in enforcing, the social norms and expectations that properly govern medical practice.

Such an understanding would hardly seem characteristic of health care professionals, particularly during a period marked by increased recourse to the courts for resolution of treatment issues (especially in the area of critical care medicine) and by renewed interprofessional hostility generated by the rapidly rising costs of malpractice insurance. For many physicians, law is apparently seen as an alien intruder in their professional domain, displacing their clinical judgment in favor of legal rules perceived as unreasonable, inflexible, and intrusive, bearing little relation to the complexities of clinical reality, and

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