Two Kinds of Statistics, the Kind You Look Up and the Kind You Make Up: A Critical Analysis of Comparative Provider Statistics and the Doctrine of Informed Consent

Abstract

Internet technology affords unprecedented accessibility to information previously too difficult or impossible to obtain. This "technological tsunami" has washed over the medical field by allowing both private and public agencies to compile and manage comparative provider statistics. This comment introduces the question of whether the enhancement of technology indeed benefits a patient in providing his/her true informed consent. At least one court has already held that access to these comparative provider statistics can be material in making up a patient's mind regarding going forward with a particular procedure or using a particular provider. For example, in 1996, the Wisconsin Supreme Court found a doctor liable under the state's informed consent laws because he failed to inform a patient about a competing physician's practice nearby. Although there has not as yet been a stampede through the courts, it is just a matter of time before the rest of the country eventually follows suit with Wisconsin and broadens the doctrine of informed consent to include provisions of provider statistics.

Section II of this comment provides a comprehensive historical background on the creation, growth, and purpose of informed consent. Part III undertakes a detailed analysis of the comparative provider statistics that may shape the future of medical practitioners' disclosure requirements under the law of informed consent. Part IV contemplates the effects of enforcing the use of comparative provider statistics in informed consent cases. Finally, Part V sets forth a proposal for obtaining a healthy balance between doctor and patient autonomy, and concludes this comment.