How informed consent arose: the key court cases
- Topic
Informed consent was born in US courts: first the right to decide about one's own body, then the duty to disclose risks.
What it is
Informed consent was not invented by doctors: judges built it, case by case. In 1914 (Schloendorff) a New York court said that every adult of sound mind has the right to decide what is done with their body, and that operating without consent is an assault. In 1957 (Salgo) a California court recognised for the first time that a doctor may be liable for not disclosing important information beyond saying what procedure will be done; the expression «informed consent» is credited to that ruling. In 1972 (Canterbury v. Spence) a federal court set which risks must be disclosed: those that a reasonable person in the patient's position would consider significant. These cases are American and are not Colombian law, but their ideas are in Law 23 of 1981 and Law 1751 of 2015. The «Informed consent» page explains how consent is obtained today.
Key facts
- Schloendorff (211 N.Y. 125, 1914): the court upheld the verdict for the hospital because it held that the doctors were not its employees; the sentence on the right to decide is the part that endured.
- Cardozo's sentence excepts the emergency in which the patient is unconscious and it is necessary to operate before consent can be obtained.
- Salgo (154 Cal. App. 2d 560, 1957) widened the old requirement to state the nature of the procedure: the information important for deciding must also be disclosed.
- Canterbury (464 F.2d 772, 1972) rejected letting doctors' custom set what is said: the boundary is drawn by the patient's right to decide.
- Canterbury: a risk is material if a reasonable person in the patient's position would attach significance to it in deciding.
- Canterbury: causation is judged objectively: what a prudent, well-informed person would have decided, not only what the patient claims afterwards.
The three cases that founded informed consent
| Case | What happened | What the court said |
|---|---|---|
| Schloendorff v. Society of New York Hospital (1914) | A patient agreed to an examination under ether and said she wanted no surgery; a fibroid tumour was removed | Every capable adult decides about their body; operating without consent is assault (the hospital, however, was not held liable) |
| Salgo v. Leland Stanford Jr. University Board of Trustees (1957) | A patient was left with paralysis of the legs after an aortography whose risks were not explained to him | The doctor may be liable for not disclosing important facts; first use of «informed consent» |
| Canterbury v. Spence (1972) | A 19-year-old had spinal surgery (laminectomy) without being told of the risk of paralysis, about 1 %; he fell unattended the next day and was left paralysed from the waist down, with permanent sequelae | What a reasonable person would want to know is disclosed; medical custom does not decide |
In clinical practice
- Reasonable person standard: a rare but serious risk, such as paralysis, is usually material and must be explained.
- When the patient asks «is it serious?», answering «no more than any other operation» without giving the specific risks repeats the Canterbury error.
- If an unconsented finding appears during surgery and it is not urgent, the authorised scope is respected and the finding is discussed with the patient afterwards.
- Therapeutic privilege does not allow keeping a risk quiet for fear that the patient will refuse treatment; Canterbury said so expressly.
Legal framework in Colombia
- Law 23 of 1981, art. 15: the doctor does not expose the patient to unjustified risks, asks for consent to treatments that may affect them physically or psychologically and explains the consequences beforehand.
- Statutory Law 1751 of 2015, art. 10, item d: clear, appropriate and sufficient information to decide freely and in an informed way; no one may be forced to receive treatment.
- The US cases are study references (they appear on the USMLE), not Colombian rules.
- Colombian official texts checked on 2026-11-13 at funcionpublica.gov.co.
Test yourself
Think of the answer, then tap the question to see it.
What principle did the 1914 Schloendorff case establish?
That every adult of sound mind has the right to decide what is done with their body; operating without consent is an assault, except in an emergency with an unconscious patient.
Which 1957 case is credited with the expression «informed consent»?
Salgo v. Leland Stanford Jr. University Board of Trustees, in California: the doctor may be liable for not disclosing information important for deciding.
What standard of disclosure did Canterbury v. Spence set in 1972?
The reasonable person standard: the risks and alternatives a reasonable person in the patient's position would find significant are disclosed, not what doctors usually say.
Which risk was not explained to the patient in Canterbury v. Spence?
The risk of paralysis after laminectomy, which the surgeon put at about 1 %; the patient fell the next day and was left with paralysis and permanent sequelae.
Which exceptions to the duty to disclose did Canterbury recognise?
Emergency, when the patient cannot consent and delay would cause harm, and therapeutic privilege, which is narrow and cannot be used to avoid a refusal.
Connections
Educational content on ethics and health law; not legal advice. Laws and case law change: each page links the official text and says when it was last checked. For a real case, read the text in force and ask a lawyer or the medical ethics tribunal.
Sources: Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914) (LSU Law Center, Medical and Public Health Law Site, 1914); Informed consent (Richards and Rathbun, Medical Care Law, chapter 1) (LSU Law Center, Medical and Public Health Law Site, 2026); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (LSU Law Center, Medical and Public Health Law Site, 1972); Ley 23 de 1981, por la cual se dictan normas en materia de ética médica (Función Pública, Gestor Normativo, 1981); Ley Estatutaria 1751 de 2015, que regula el derecho fundamental a la salud (Función Pública, Gestor Normativo, 2015).
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