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Informed Consent and the Differential Diagnosis

Ginsberg, Marc, Informed Consent and the Differential Diagnosis: How the Law Overestimates Patient Autonomy and Compromises Health Care (July 10, 2014). Available for download at SSRN:

The purpose of this paper is not simply to re-examine the doctrine of informed consent. The purpose, however, is to identify how the doctrine has evolved, its scope expanded, and how it has created serious consequences for physicians and patients. Specifically, this paper focuses on the differential diagnosis – the process by which a physician arrives at a diagnosis – and how some jurisdictions have manipulated informed consent to encompass this process. This paper will urge that the application of informed consent to the differential diagnosis is an unnecessary expansion of the doctrine and, potentially, compromises health care.”

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