How Much Does the Doctor Have to Tell You to Obtain Your Consent?
Does he have to tell you everything he is going to do? Go through the surgical operation step-by-step? Warn you about every possible complication? Discuss all possible alternative treatments, even if they are hardly ever used? What if the chance of a certain complication is one in a million? What if it is one in ten? How about a 50-50 chance?
It varies in different states, and the laws are complex. However, almost all states adhere to one of two standards in deciding what a doctor has to tell you in order to obtain a valid, informed consent. They are the reasonable physician standard and the reasonable patient standard.
The Reasonable Physician Standard
Lawyers call this the professional standard. But, the reasonable physician standard explains it better. It is the law in most states. It says that a doctor has to tell you as much as a prudent and reasonable doctor would, under the same conditions. In other words, he has to tell you as much as he thinks you need to know. This leaves a lot to the doctor’s discretion. If you want to charge that the doctor did not obtain a valid, informed consent, you have to call in another doctor as an medical expert witness to testify that a reasonable doctor would have given you more information.
How much does the doctor have to tell you in a professional standard state? Here are some of the things he has to tell you and some he does not:
1. He must warn you about any substantial risk of injury and tell you about possible alternatives that do not carry the same degree of risk.
2. He must also warn you about common complications and risks, even if the potential injury is slight. But, he only has to warn you about unusual or rare complications, if they are serious or dangerous.
3. He does not have to warn you about risks that are common knowledge or already known to you.
4. He does not have to tell you about alternative treatments that are experimental or ones that have been discarded by the medical profession.
5. He does not have to warn you about risks that are uncommon or rare, if they are not serious.
6. He does not have to warn you about any risk if he believes it would frighten you unduly and cause you to refuse necessary or life-saving treatment. This is called the Therapeutic Privilege. It is not justified just because the doctor thinks you might refuse beneficial treatment, and it only applies when there is a life-threatening risk if treatment is refused, or when safer or more conservative treatment has reached the point of no-return.
In a Hawaii case, the doctors suspected a patient had an aneurysm of an artery in the brain, which could burst and kill him. Before doing neurosurgery to clip off the aneurysm, it was necessary to perform a hazardous diagnostic test to confirm its presence and pinpoint the location. The doctors did not tell the patient about the danger of the test, because they were afraid he would refuse and suffer a fatal brain hemorrhage. The test left the patient paralyzed, and the patient sued, because he had not been warned of the risk. But, the court held they were justified because of the therapeutic privilege. The risk of death from brain hemorrhage outweighed the risk of paralysis from the test.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.