dissenting.
Judge Cardozo began the doctrine of informed consent when he wrote:1 “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” Judge Cardozo had before him a case of trespass, not mere negligence, namely unauthorized surgery. However, the doctrine has been expanded to cases in which the patient authorized the treatment but was not informed of the risks.2 Today, the doctrine appears to be applicable in negligence cases (i.e., a failure to warn constitutes negligence) as well as in cases in which battery is alleged.3
“Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of lifesaving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.”4
It is true that the Georgia Court of Appeals has held that, by virtue of our Medical Consent Law, OCGA § 31-9-6 (Code Ann. § 88-2906), the requirement of informed consent does not exist in this state. Parr v. Palmyra Park Hospital, 139 Ga.App. 457, 459, 228 S.E.2d 596 (1976). However, we deal here not with the Medical Consent Law, applicable to medical treatment generally, but with the Voluntary Sterilization Act, OCGA § 31-20-2 (Code Ann. § 84-932).
Unlike medical treatment in general, which is more often than not, necessary, and therefore almost compulsory, sterilization is almost always elective surgery. In my view, where surgery is elective, the patient is entitled to be sufficiently informed so as to make an intelligent choice; i.e., the patient is entitled to be informed of possible risks and complications associated with the sterilization procedure.
I therefore would interpret our Voluntary Sterilization Act, OCGA § 31-20-2 (Code Ann. § 84-932), which requires that the physician explain the “consequence of such operation”, to include the reasonably possible risks and complications. The doctor’s argument here that the law merely requires that he explain that sterilization means that “You can’t have any more babies” is to me an oversimplification and exceedingly narrow construction of legislative intent. I therefore would answer the question certified in the affirmative.
I am authorized to state that Justice SMITH joins in this dissent.
. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914).
. Simpson, Informed Consent, 76 Northwestern ULR 172, 173-174 (1981).
. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960).
. Natanson v. Kline, supra, note 3, 350 P.2d at p. 1104.