Bleedings, purges, and vomits: Dr. Benjamin Rush's republican medicine, the bilious remitting yellow-fever epidemic of 1793, and the non-origin of the law of informed consent.
To the consternation of many physicians, the modern law of informed consent imposes certain constraints on their actions, not least that they respect patients' decisions to redefine at will the scope of care. The consequences of this transfer of power are often a nuisance and occasionally fatal, but always a reflection of democracy's leveling march: Physicians now take orders rather than give them. However frustrating the modern preference for process over result might be, we should ask ourselves-before condemning the law's evolution-about the consequences for patients' health of a more radically democratic practice of medicine. This paper proposes to examine this question as framed by the life of Dr. Benjamin Rush, who, in addition to signing the Declaration of Independence, crafted a medical practice uniquely suited to the young Republic's presumed moral character: Self-aware sufferers would promptly identify their own maladies and courageously treat themselves. In the end, his enterprise was flawed because his democratic instincts misled not only his scientific inquiries (disease is complex, not simple) but also his practice recommendations (patients are scared, not intrepid). Reflection on Rush's failed project should give pause to those who lament the passing of paternalistic medicine, for the law's requirements, however onerous they might be, tolerably accommodate both patients' need for physicians' expertise and our democratic belief that consent is the fundamental precondition of all rule.
Clark
Randall Baldwin
RB
George Mason University School of Law, USA.