The Reasonable Patient Standard in Informed Consent
Lawyers call this the Lay Standard, because it is based on what a layman (the patient) understands and not what a professional thinks she needs to understand.
The Reasonable Patient Standard simply says the doctor has to disclose all information which would influence you, or any other reasonable person, in deciding whether or not to go ahead. This is a lot easier for you, because you do not need a doctor to testify to what is reasonable. If you would have acted differently, had you known all the facts, then it is not an informed consent. Put another way, the doctor has to disclose all material risks. A material risk is one that the average person would take into consideration in making a decision. And, like the reasonable physician standard, the doctor must also tell you of alternative courses of treatment and what can happen if you refuse treatment. The reasonable patient standard is better for you, because you do not have to bring in an expert, and the doctor cannot defend himself by saying he told you what one of his colleagues would have told you.
How much a doctor has to tell you varies from state to state. Some states have the Therapeutic Privilege; some do not. Some give doctors a free hand in treating life-threatening emergencies. Only your lawyer can tell you for sure whether the information your doctor gave you satisfied the law in your state.
The first time the reasonable patient standard was used by a court was in Washington, D.C., and it is a famous case. A neurosurgeon did a laminectomy (a spinal operation) on a 19 year-old girl, who complained of some back pain. He did not warn her about the possible complications, especially the 1% chance that the operation could leave her paralyzed for life, which it did. The doctor said he had complied with the law by telling her as much as he thought she needed to know, which was not much. But, the court said he failed to give her enough information to allow her to make an informed decision. She would not have risked even a 1% chance of paralysis just to get rid of a backache that could have been treated safely by conservative means. Since that time, more and more states have adopted the reasonable patient (lay) standard.
An Oklahoma woman was advised to have a routine Pap smear for cancer of the uterus; however, she did not follow-up, and the doctor said nothing more about it. She did not have the test. She later developed incurable cancer and sued the doctor for failure to warn her. At that time, Oklahoma used the reasonable patient (lay) standard, and the court found the doctor was negligent, because he had failed to advise her of all the material risks of her refusal. The ease and simplicity of the test, and the serious risk of death from cancer, made a warning and follow-up mandatory.
Unusual or Experimental Treatments
All unusual or experimental treatments come under the reasonable patient standard in almost every state. The doctor must tell you everything that is known about it, including the most remote possibilities of any bad reaction, before subjecting you to anything that is not approved by the federal government or generally accepted by the medical profession. This is true also of treatments like sterilization or x-ray therapy, which can have permanent effects on your life or cause serious complications years later.
In the 1950’s a sleeping pill called Thalidomide was developed in Germany. It was never approved by the U.S. Food and Drug Administration, but some doctors brought it into the country and gave it to their patients. It was later discovered that if taken by pregnant women, it caused children to be born without arms and legs. Many lawsuits resulted with significant damages awarded. In all of the cases, the doctors, who had given the drug, were held to the reasonable patient (lay) standard in failing to warn that it was an experimental drug.
Who is Responsible for Informing You?
If you file a medical malpractice lawsuit and complain that you did not sign an informed consent, you may find yourself getting a “fast shuffle” with the doctors, the residents, and the hospital, each blaming someone else. The rule is that each doctor is personally responsible for informing you about what he is going to do and obtaining your informed consent. He does not have to do it himself, but if he sends a resident or a nurse or anyone else, he is still responsible for what that person tells you.
If the doctor obtains your consent himself, he should sign it himself. If someone else does it for him, he accepts responsibility when he countersigns it. If he does not, both he and the person who obtained it are responsible. If that person is a hospital employee, the hospital is also responsible.
The Rule Is: The doctor who actually works on you is ultimately responsible for telling you what he is going to do and obtaining your informed consent, regardless of who actually gets it.
Which Standard Applies in Your State?
The laws in all states are complicated, and there are many exceptions to the general rules. Only your lawyer can give you a reliable opinion as to which standard applies in your case.
By JD.MD, Inc.ABOUT THE AUTHOR: JD.MD, Inc.
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Call (800) 225-5363
JD.MD, Inc., has provided case evaluations, expert witnesses, and support services to attorneys throughout the United States and Canada since 1978. JD.MD has experts from all Medical and Dental specialties, all geographic areas, and our experts are available for consultation and testimony in cases they deem to be meritorious.
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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.