Informed Consent & Medical Malpractice Law

Medical Malpractice Austin Texas

Dec 7, 2012 — by Jeff Mundy
Tags: Medical Malpractice

In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider , the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

[The common law] imposes on "[p]hysicians and surgeons [the] duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment." 

The common-law duty is based upon the patient's right to information adequate for him to exercise an informed consent to or refusal of the procedure. The nature and extent of the disclosure depends upon the medical problem as well as the patient. In some medical procedures the dangers are great; in others they are minimal. It has been suggested that some disclosures may so disturb the patient that they serve as hindrances to needed treatment. Certain disclosures in some instances may even be bad medical practice.

In sum, a reasonable health care provider must disclose the risks that would influence a reasonable patient in deciding whether to undergo treatment but not those that would be unduly disturbing to an unreasonable patient. The common-law duty was defined not only for a school of practice but for a community, and the statutory duty abandons the latter factor - the "locality rule".

The abandonment is not based on principle as much as the recognition that standards of health care have ceased to be a matter of local practice, and for the same reason, it is doubtful whether the "locality rule" survives for the common law.

Both require disclosure of risks "inherent" in treatment.  An inherent risk, as the court of appeals in this case noted, is one that "exists in and is inseparable from the procedure itself".

Failures to disclose what a reasonable patient should know, and what a reasonable care provider would disclose, are both negligence.

Felton v. Lovett, (Texas Supreme Court, 2012).


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