Two standards of review
The two standards of review for informed consent claims are the reasonable physician standard and the reasonable patient standard (bit.ly/Consentexperience). A majority of states follow the reasonable physician standard. Under this standard, a physician must disclose the risks that a reasonable medical professional would have disclosed under similar circumstances. This standard looks to what physicians commonly disclose when dealing with a similar medical or surgical case.
A minority of states follow what is known as the reasonable patient standard. This standard looks to whether a reasonable person in the patient’s position would consider the information material to his/her decision as to whether to agree to allow the physician to perform the surgery upon him/her.
These standards may sound similar, but they are very different. What a reasonable person in a patient’s position would find pertinent in deciding whether to proceed with a procedure by a specific doctor is not necessarily what a reasonable physician of like training and experience would have disclosed in the same circumstances. Do you know what standard your jurisdiction follows? If not, a call to your liability carrier or your institution’s general or malpractice defense counsel may be beneficial.
Previously adjudicated cases can also impact what needs to be disclosed through the informed consent process. A surgeon’s level of experience, for example, has been the subject of litigation with regard to informed consent. A number of states following the reasonable patient standard have decided that the experience level of the surgeon may be a fact that a reasonable patient would consider in making a decision on a surgical procedure (bit.ly/Consentexperience). On the other hand, some of the reasonable physician states have adjudicated that there is no affirmative duty to disclose this information in order to obtain informed consent.
Other cases have decided that physicians are required to disclose any personal or economic interests that may influence their judgment in choosing a treatment or procedure (Virtual Mentor 2012; 14:563-6). A Wisconsin case from 2012 held that physicians are required to disclose all diagnostic tests that may rule out a possible condition, even if the physician has already ruled out the condition or diagnosis (bit.ly/Wiscstatement).
In sum, the moral here is to know your jurisdiction and honor the consent form. Between the two standards of review and the countless cases that have been litigated, each state has its own nuances concerning informed consent. Seeking guidance on how to best tailor informed consent discussions and documenting them properly in the record is recommended. Ensuring that whoever is listed on the consent form actually performs the surgery or procedure is critical, and not doing so can be very costly.
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