John Kindley, "The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk," 1998 Wisconsin Law Review, No. 1595
The purpose of this article is to show that the current level of scientific evidence linking induced abortion with increased breast cancer risk is sufficient to support an ethical and legal duty to disclose fully the risk to women who are considering pregnancy termination. The article approaches this goal by examining the relationship between this evidence and the elements for a medical malpractice claim alleging failure to obtain informed consent. An informed consent cause of action generally requires the plaintiff to establish the following four elements: (1) the physician had a duty to disclose information; (2) which he or she failed to disclose; and (3) this failure to disclose was a legal cause of (4) the plaintiff's injury. Depending on the jurisdiction, the physician's duty to disclose extends either to all risks which a reasonable physician would disclose under the same or similar circumstances, or to those which a reasonable patient would be likely to attach significance in deciding whether or not to forego the proposed treatment. Whether the duty to warn is initially viewed from the perspective of a reasonable physician or of a reasonable patient, the question for the jury should essentially come down to whether a reasonable patient would consider the information material to her decision. The article assesses the materiality of the risk posed by the abortion-breast cancer link by analyzing the scientific evidence in terms of three interrelated components: (1) the probable consequences of developing breast cancer; (2) the increased probability that breast cancer will develop, assuming that the statistical association reflects a causal link; and (3) the probability that the association does reflect a real, biological link. Emphasizing that even "potential" risks are actual risks for patients facing a decision, the article argues that the abortion-breast cancer link is likely to be significant in the decision-making process of a
reasonable patient, and therefore must be disclosed to women considering abortion. The article then discusses how a plaintiff may establish legal causation by convincing the jury by a preponderance of the evidence both that the defendant's failure to inform was a "deciding factor" in her choice to undergo the abortion, and that the abortion was a "but for" component of the causal mechanism that produced her breast cancer. The article also discusses legal theories which recognize that the failure to warn is a dignitary harm in and of itself, which may support a punitive damage award independently of establishing causation or actual physical injury. The article argues that such a lawsuit would be particularly justified for a woman who was intentionally not informed of the abortion-breast cancer link, and who must now live with the knowledge that her risk of breast cancer has been increased without her consent. The article concludes by suggesting that not only women considering abortion, but also any woman who might have an abortion in her past or future, has a need and a right to know the truth about this serious health threat. ***