Understanding the Doctrine of Informed Consent

As litigators and advocates for physician clients facing medical malpractice claims, as well as attorneys who often counsel and advise physician-based medical practices on the “best practices” to invoke in order to avoid becoming a defendant in a medical malpractice suit, it is important that we help our clients to understand the duties they owe their patients. These duties go beyond diagnosing medical conditions and prescribing proper treatments. One such duty, the parameters of which continue to evolve and become more refined ' and perhaps more confusing ' through litigation, is the duty to facilitate the patient's informed consent.

The duty of eliciting informed consent, in its most basic form, is the duty inherent in the patient-physician relationship to properly and fully advise a patient of the risks associated with a particular procedure. With this information, the patient can decide what course of treatment is best for him or her. In order to be a proper counselor, advisor and defense attorney, lawyers should fully understand the intricacies of their own jurisdictions' informed consent laws, which can vary widely from state to state.

The Right Point of View

As a general proposition, physicians understand that they have a duty to inform their patients of the risks associated with medical treatment. Physicians, who clearly possess greater medical knowledge than their patients, understand risks and are able to weigh those risks based on their knowledge, training and experience in medicine. However, patients often bring their own set of priorities to the decision whether to embark on a specific course of medical treatment or to undergo a particular procedure. The question becomes, in advising our clients on the duty of informed consent, whose opinion matters most? Do we tell physicians that the duty to disclose information is measured from the patient's perspective, from the physician's perspective, or both?

As you might expect, the short answer is, “It depends.” Interestingly, some states measure the duty of informed consent from the physician's point of view while other states measure the duty from the patient's point of view. To further confuse the boundaries of the duty, there is even a third category of states that measure the duty from both ' a “hybrid” form of the duty, so to speak.

From the Doctor's Perspective

In the states that measure the duty of informed consent from the physician's point of view, the duty becomes a question of professional standards. Some states in this category focus on the customary practices in the relevant community, while others focus on what a reasonably prudent physician would do. For instance, in Arkansas adequate disclosure of the risks of a procedure is measured by the customary practice of the physicians in the community in which the medical care provider practices, or in a similar community. Brumley v. Naples, 320 Ark. 310, (1995). In fact, this standard of care applies in Arkansas even in a case arising from the physician's failure to disclose certain known risks to the patient. Fuller, Adm'x v. Starnes, 268 Ark. 476 (1980).

In Idaho, they apply a similar standard, as illustrated by the case of Sherwood v. Carter, 119 Idaho 246 (1991). In Sherwood, the patient brought an action against her physician, claiming that he performed a biopsy on her without her informed consent. The trial court entered judgment on the jury's verdict in favor of the physician, and the patient appealed.

When the case reached the Idaho Supreme Court, the court first looked at the state's statute concerning the sufficiency of informed consent, Idaho Code ' 39-4304, which states:

Sufficiency of consent. ' Consent for the furnishing of hospital, medical, dental or surgical care, treatment or procedures shall be valid in all respects if the person giving it is sufficiently aware of pertinent facts respecting the need for, the nature of and the significant risks ordinarily attendant upon such a patient receiving such care, as to permit the giving or withholding of such consent to be a reasonably informed decision. Any such consent shall be deemed valid and so informed if the physician or dentist to whom it is given or by whom it is secured has made such disclosures and given such advice respecting pertinent facts and considerations as would ordinarily be made and given under the same or similar circumstances, by a like physician or dentist of good standing practicing in the same community. As used in this section, the term “in the same community” refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such consent is given.

There appeared to be some ambiguity in this statute, whose first and second sentences seemed to offer two different standards. In fact, the Sherwood court noted that the language of the statute had “created substantial confusion among the members of the trial bench and bar as a result of what appears to be two inconsistent standards, i.e., 'patient-based' [in the statute's first sentence] versus a 'physician-based' [in the statute's second sentence] standard of disclosure.” However, the court found the statute not inconsistent after conducting an in-depth review of the first sentence of ' 39-4304. It states that consent to medical treatment is valid if “the person giving it is sufficiently aware of pertinent facts respecting the need for, the nature of and the significant risks ordinarily attendant upon such a patient receiving such care as to permit the giving or withholding of such consent to be a reasonably informed decision.” (Emphasis added.)

With this language in mind, the court looked up the word “ordinary” in Webster's Seventh Collegiate Dictionary and found that it means “routine, normal.” It next turned to Black's Law Dictionary (6th ed.), which defines “ordinary” as “usual, common, customary, reasonable, not characterized by peculiar or unusual circumstances.” Webster's Seventh Collegiate Dictionary also defines “ordinarily” as “in an ordinary manner or to an ordinary ' degree,” and the word “such” as “of the same class, type or sort: similar.” Taking these definitions together, the court then found:

Applying the ordinary and usual meanings of the words used in I.C. ' 39-4304, the phrase 'such a patient' can logically and reasonably be interpreted to mean a patient within the class of similarly situated patients. As such, the language in the first sentence of I.C. ' 39-4304 can logically be interpreted as creating an objective standard of disclosure based on reasonableness with regard to patients who are similarly situated. To interpret the language in the first sentence to be a subjective 'patient-based' standard of disclosure is contrary to the ordinary, common and usual meaning of the words used. Furthermore, and perhaps more important, interpretation of the first sentence as creating a 'patient-based' subjective standard clearly conflicts with the express language contained in the second sentence of I.C. ' 39-4304.

Thus, the court determined that the physician-based, rather than patient-based, standard was applicable in Idaho.

The Patient-Based Standard

Some states use a patient-based standard of informed consent and measure the extent of the duty by deciding what information a reasonable patient would require to intelligently make his or her treatment decision. For example, the courts in Alabama appear to favor an objective, rather than subjective, patient-based measure “based on what a reasonable person in the patient's position would have done had the information been disclosed by the practitioner.” Craig v. Borcicky, 557 So.2d 1253 (1990) (citing Fain v. Smith, 479 So.2d 1150 (1985)).

In 1988, New Jersey abandoned its physician-based standard of disclosure in favor of a more patient-based one. The primary reasons for the change were enunciated by that state's highest court in Largey v. Rothman, 110 N.J. 204 (1988), a case in which the trial court in a medical malpractice action had instructed the jury that the defendant physician was required to tell his patient “what reasonable medical practitioners in the same or similar circumstances would have told their patients undertaking the same type of operation.” By answer to a specific interrogatory on this point, the jurors responded that defendant had not “fail[ed] to provide [the plaintiff] with sufficient information so that she could give informed consent.” On appeal, New Jersey's Supreme Court reversed, stating for its reasons:

The jurisdictions that have rejected the “professional” standard in favor of the “prudent patient” rule have given a number of reasons in support of their preference. Those include:

1) The existence of a discernible custom reflecting a medical consensus is open to serious doubt. The desirable scope of disclosure depends on the given fact situation, which varies from patient to patient, and should not be subject to the whim of the medical community in setting the standard.

2) Since a physician in obtaining a patient's informed consent to proposed treatment is often obligated to consider non-medical factors, such as a patient's emotional condition, professional custom should not furnish the legal criterion for measuring the physician's obligation to disclose. Whether a physician has conformed to a professional standard should be important [only] where a pure medical judgment is involved, e.g., in ordinary malpractice actions, where the issue generally concerns the quality of treatment provided to the patient.

3) Closely related to both 1) and 2) is the notion that a professional standard is totally subject to the whim of the physicians in the particular community. Under this view a physician is vested with virtually unlimited discretion in establishing the proper scope of disclosure; this is inconsistent with the patient's right of self-determination. As observed by the court in Canterbury v. Spence [464 F.2d 772 (D.C. Cir.), cert. den., 409 U.S. 1064 (1972)]: “Respect for the patient's right of self-determination demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”

4) The requirement that the patient present expert testimony to establish the professional standard has created problems for patients trying to find physicians willing to breach the “community of silence” by testifying against fellow colleagues. [D. Louisell and H. Williams, Medical Malpractice ' 22.08 at 22-23 (1987) ' 22.12 at 22-45 to -47 (footnotes omitted).]

Taken together, these reasons supporting the adoption of the “prudent patient” standard persuaded the New Jersey Supreme Court that the time had come “for the state to abandon so much of the decision by which this Court embraced the doctrine of informed consent as accepts the “professional” standard.” Thus, the court overruled precedent that had adhered to the physician-based standard for determining adequate disclosure for a finding of informed consent.

Alternative Standards

California uses a modified physician-based standard, described in Cobbs v. Grant, 8 Cal.3d 229 (1972). There, the California Supreme Court, in discussing on appeal a physician's duty to inform, said that a doctor does not need to disclose risks when the patient requests that he not be so informed. Disclosure also need not be made if the procedure is simple and the danger remote and commonly appreciated to be remote. Finally, a physician does not have to disclose a risk that goes beyond what the medical community requires when the physician can show the disclosure would upset the patient to the point that the patient would not be able to decide
on a treatment without the influence of passion.

In other states, other hybrid forms of the standard are used. For instance, in Georgia, for certain procedures, a physician must inform a patient of “the material risks generally recognized and accepted by reasonably prudent physicians of infection, allergic reaction, severe loss of blood ' which, if disclosed a reasonably prudent person in the patient's position, could reasonably be expected to cause such prudent person to decline such proposed surgical or diagnostic procedure on the basis of the material risk of injury that could result.” O.C.G.A. ' 31-9-6.1(a)(3). As shown, both the physician's perspective and the
patient's perspective are taken
into consideration.

Conclusion

The advantages and disadvantages of the physician-based and patient-based standards are fairly clear. On the one hand, the physician-based standard appears to leave less room for a patient's particular desires and circumstances and focuses less on emotion and more on technical medicine. This standard is more concise and less susceptible to hindsight arguments, and it would appear to combat the often-made argument of plaintiffs that they would have chosen a different treatment option if given more information. On the other hand, the states that employ a patient-based standard are more sympathetic to the patient's needs. The patient-based standard certainly gives more deference to the self-determination of each individual patient, protecting them from the type of complicated or otherwise unintelligible “informed consent” that leaves them, ultimately, uninformed. Yet the trappings of hindsight are sure to become an issue in a case when the standard is based on what a reasonable person would have done had the physician disclosed the information. As for the hybrid standard, it seems to produce both the advantages and disadvantages of the other standards.

In terms of counseling our defendant clients and our physician-based medical practices yet to be sued, the advice to the medical malpractice practitioner is simple ' do not overlook or misapply the duty of informed consent. Ensure that the method your clients employ in obtaining informed consent conforms to the law of the jurisdiction in which the professional practices medicine. Physicians in a patient-based jurisdiction need to know that what their fellow community members would disclose is not nearly as relevant as considering a reasonable person in the patient's position, and vice versa. For those clients not yet sued, advise them to properly document the process of informed consent. That way, should they get sued, the medical record will speak for itself on this topic.

When a client has become the object of a medical malpractice suit involving an accusation of failure to inform, step back from studying the medical records and determine whether your physician client provided the proper advice and counseling to his or her patient. And thoroughly prepare your clients to testify in depth regarding how they discussed (and documented) the pros and cons of a particular medical procedure with their patients.

Kim M. Ruder is of counsel with the law firm of Carlock, Copeland & Stair, LLP in Atlanta. Her litigation practice is focused primarily on medical malpractice, general liability and trucking and transportation law. Samantha T. Lemery is an associate with the firm. Her practice is focused in the areas of medical malpractice, general liability and products liability.

As litigators and advocates for physician clients facing medical malpractice claims, as well as attorneys who often counsel and advise physician-based medical practices on the “best practices” to invoke in order to avoid becoming a defendant in a medical malpractice suit, it is important that we help our clients to understand the duties they owe their patients. These duties go beyond diagnosing medical conditions and prescribing proper treatments. One such duty, the parameters of which continue to evolve and become more refined ' and perhaps more confusing ' through litigation, is the duty to facilitate the patient's informed consent.

The duty of eliciting informed consent, in its most basic form, is the duty inherent in the patient-physician relationship to properly and fully advise a patient of the risks associated with a particular procedure. With this information, the patient can decide what course of treatment is best for him or her. In order to be a proper counselor, advisor and defense attorney, lawyers should fully understand the intricacies of their own jurisdictions' informed consent laws, which can vary widely from state to state.

The Right Point of View

As a general proposition, physicians understand that they have a duty to inform their patients of the risks associated with medical treatment. Physicians, who clearly possess greater medical knowledge than their patients, understand risks and are able to weigh those risks based on their knowledge, training and experience in medicine. However, patients often bring their own set of priorities to the decision whether to embark on a specific course of medical treatment or to undergo a particular procedure. The question becomes, in advising our clients on the duty of informed consent, whose opinion matters most? Do we tell physicians that the duty to disclose information is measured from the patient's perspective, from the physician's perspective, or both?

As you might expect, the short answer is, “It depends.” Interestingly, some states measure the duty of informed consent from the physician's point of view while other states measure the duty from the patient's point of view. To further confuse the boundaries of the duty, there is even a third category of states that measure the duty from both ' a “hybrid” form of the duty, so to speak.

From the Doctor's Perspective

In the states that measure the duty of informed consent from the physician's point of view, the duty becomes a question of professional standards. Some states in this category focus on the customary practices in the relevant community, while others focus on what a reasonably prudent physician would do. For instance, in Arkansas adequate disclosure of the risks of a procedure is measured by the customary practice of the physicians in the community in which the medical care provider practices, or in a similar community. Brumley v. Naples , 320 Ark. 310, (1995). In fact, this standard of care applies in Arkansas even in a case arising from the physician's failure to disclose certain known risks to the patient. Fuller, Adm'x v. Starnes , 268 Ark. 476 (1980).

In Idaho, they apply a similar standard, as illustrated by the case of Sherwood v. Carter , 119 Idaho 246 (1991). In Sherwood, the patient brought an action against her physician, claiming that he performed a biopsy on her without her informed consent. The trial court entered judgment on the jury's verdict in favor of the physician, and the patient appealed.

When the case reached the Idaho Supreme Court, the court first looked at the state's statute concerning the sufficiency of informed consent, Idaho Code ' 39-4304, which states:

Sufficiency of consent. ' Consent for the furnishing of hospital, medical, dental or surgical care, treatment or procedures shall be valid in all respects if the person giving it is sufficiently aware of pertinent facts respecting the need for, the nature of and the significant risks ordinarily attendant upon such a patient receiving such care, as to permit the giving or withholding of such consent to be a reasonably informed decision. Any such consent shall be deemed valid and so informed if the physician or dentist to whom it is given or by whom it is secured has made such disclosures and given such advice respecting pertinent facts and considerations as would ordinarily be made and given under the same or similar circumstances, by a like physician or dentist of good standing practicing in the same community. As used in this section, the term “in the same community” refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such consent is given.

There appeared to be some ambiguity in this statute, whose first and second sentences seemed to offer two different standards. In fact, the Sherwood court noted that the language of the statute had “created substantial confusion among the members of the trial bench and bar as a result of what appears to be two inconsistent standards, i.e., 'patient-based' [in the statute's first sentence] versus a 'physician-based' [in the statute's second sentence] standard of disclosure.” However, the court found the statute not inconsistent after conducting an in-depth review of the first sentence of ' 39-4304. It states that consent to medical treatment is valid if “the person giving it is sufficiently aware of pertinent facts respecting the need for, the nature of and the significant risks ordinarily attendant upon such a patient receiving such care as to permit the giving or withholding of such consent to be a reasonably informed decision.” (Emphasis added.)

With this language in mind, the court looked up the word “ordinary” in Webster's Seventh Collegiate Dictionary and found that it means “routine, normal.” It next turned to Black's Law Dictionary (6th ed.), which defines “ordinary” as “usual, common, customary, reasonable, not characterized by peculiar or unusual circumstances.” Webster's Seventh Collegiate Dictionary also defines “ordinarily” as “in an ordinary manner or to an ordinary ' degree,” and the word “such” as “of the same class, type or sort: similar.” Taking these definitions together, the court then found:

Applying the ordinary and usual meanings of the words used in I.C. ' 39-4304, the phrase 'such a patient' can logically and reasonably be interpreted to mean a patient within the class of similarly situated patients. As such, the language in the first sentence of I.C. ' 39-4304 can logically be interpreted as creating an objective standard of disclosure based on reasonableness with regard to patients who are similarly situated. To interpret the language in the first sentence to be a subjective 'patient-based' standard of disclosure is contrary to the ordinary, common and usual meaning of the words used. Furthermore, and perhaps more important, interpretation of the first sentence as creating a 'patient-based' subjective standard clearly conflicts with the express language contained in the second sentence of I.C. ' 39-4304.

Thus, the court determined that the physician-based, rather than patient-based, standard was applicable in Idaho.

The Patient-Based Standard

Some states use a patient-based standard of informed consent and measure the extent of the duty by deciding what information a reasonable patient would require to intelligently make his or her treatment decision. For example, the courts in Alabama appear to favor an objective, rather than subjective, patient-based measure “based on what a reasonable person in the patient's position would have done had the information been disclosed by the practitioner.” Craig v. Borcicky , 557 So.2d 1253 (1990) (citing Fain v. Smith , 479 So.2d 1150 (1985)).

In 1988, New Jersey abandoned its physician-based standard of disclosure in favor of a more patient-based one. The primary reasons for the change were enunciated by that state's highest court in Largey v. Rothman , 110 N.J. 204 (1988), a case in which the trial court in a medical malpractice action had instructed the jury that the defendant physician was required to tell his patient “what reasonable medical practitioners in the same or similar circumstances would have told their patients undertaking the same type of operation.” By answer to a specific interrogatory on this point, the jurors responded that defendant had not “fail[ed] to provide [the plaintiff] with sufficient information so that she could give informed consent.” On appeal, New Jersey's Supreme Court reversed, stating for its reasons:

The jurisdictions that have rejected the “professional” standard in favor of the “prudent patient” rule have given a number of reasons in support of their preference. Those include:

1) The existence of a discernible custom reflecting a medical consensus is open to serious doubt. The desirable scope of disclosure depends on the given fact situation, which varies from patient to patient, and should not be subject to the whim of the medical community in setting the standard.

2) Since a physician in obtaining a patient's informed consent to proposed treatment is often obligated to consider non-medical factors, such as a patient's emotional condition, professional custom should not furnish the legal criterion for measuring the physician's obligation to disclose. Whether a physician has conformed to a professional standard should be important [only] where a pure medical judgment is involved, e.g., in ordinary malpractice actions, where the issue generally concerns the quality of treatment provided to the patient.

3) Closely related to both 1) and 2) is the notion that a professional standard is totally subject to the whim of the physicians in the particular community. Under this view a physician is vested with virtually unlimited discretion in establishing the proper scope of disclosure; this is inconsistent with the patient's right of self-determination. As observed by the court in Canterbury v. Spence [464 F.2d 772 (D.C. Cir.), cert. den., 409 U.S. 1064 (1972)]: “Respect for the patient's right of self-determination demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”

4) The requirement that the patient present expert testimony to establish the professional standard has created problems for patients trying to find physicians willing to breach the “community of silence” by testifying against fellow colleagues. [D. Louisell and H. Williams, Medical Malpractice ' 22.08 at 22-23 (1987) ' 22.12 at 22-45 to -47 (footnotes omitted).]

Taken together, these reasons supporting the adoption of the “prudent patient” standard persuaded the New Jersey Supreme Court that the time had come “for the state to abandon so much of the decision by which this Court embraced the doctrine of informed consent as accepts the “professional” standard.” Thus, the court overruled precedent that had adhered to the physician-based standard for determining adequate disclosure for a finding of informed consent.

Alternative Standards

California uses a modified physician-based standard, described in Cobbs v. Grant , 8 Cal.3d 229 (1972). There, the California Supreme Court, in discussing on appeal a physician's duty to inform, said that a doctor does not need to disclose risks when the patient requests that he not be so informed. Disclosure also need not be made if the procedure is simple and the danger remote and commonly appreciated to be remote. Finally, a physician does not have to disclose a risk that goes beyond what the medical community requires when the physician can show the disclosure would upset the patient to the point that the patient would not be able to decide
on a treatment without the influence of passion.

In other states, other hybrid forms of the standard are used. For instance, in Georgia, for certain procedures, a physician must inform a patient of “the material risks generally recognized and accepted by reasonably prudent physicians of infection, allergic reaction, severe loss of blood ' which, if disclosed a reasonably prudent person in the patient's position, could reasonably be expected to cause such prudent person to decline such proposed surgical or diagnostic procedure on the basis of the material risk of injury that could result.” O.C.G.A. ' 31-9-6.1(a)(3). As shown, both the physician's perspective and the
patient's perspective are taken
into consideration.

Conclusion

The advantages and disadvantages of the physician-based and patient-based standards are fairly clear. On the one hand, the physician-based standard appears to leave less room for a patient's particular desires and circumstances and focuses less on emotion and more on technical medicine. This standard is more concise and less susceptible to hindsight arguments, and it would appear to combat the often-made argument of plaintiffs that they would have chosen a different treatment option if given more information. On the other hand, the states that employ a patient-based standard are more sympathetic to the patient's needs. The patient-based standard certainly gives more deference to the self-determination of each individual patient, protecting them from the type of complicated or otherwise unintelligible “informed consent” that leaves them, ultimately, uninformed. Yet the trappings of hindsight are sure to become an issue in a case when the standard is based on what a reasonable person would have done had the physician disclosed the information. As for the hybrid standard, it seems to produce both the advantages and disadvantages of the other standards.

In terms of counseling our defendant clients and our physician-based medical practices yet to be sued, the advice to the medical malpractice practitioner is simple ' do not overlook or misapply the duty of informed consent. Ensure that the method your clients employ in obtaining informed consent conforms to the law of the jurisdiction in which the professional practices medicine. Physicians in a patient-based jurisdiction need to know that what their fellow community members would disclose is not nearly as relevant as considering a reasonable person in the patient's position, and vice versa. For those clients not yet sued, advise them to properly document the process of informed consent. That way, should they get sued, the medical record will speak for itself on this topic.

When a client has become the object of a medical malpractice suit involving an accusation of failure to inform, step back from studying the medical records and determine whether your physician client provided the proper advice and counseling to his or her patient. And thoroughly prepare your clients to testify in depth regarding how they discussed (and documented) the pros and cons of a particular medical procedure with their patients.

Kim M. Ruder is of counsel with the law firm of Carlock, Copeland & Stair, LLP in Atlanta. Her litigation practice is focused primarily on medical malpractice, general liability and trucking and transportation law. Samantha T. Lemery is an associate with the firm. Her practice is focused in the areas of medical malpractice, general liability and products liability.