P went to a D, a surgeon, because she had fibroid tumors on her uterus. P signed a routine consent form before the surgery.
After the surgery, P suffered incontinence and had to have 3 surgeries to fix that problem.
P sued D in negligence on the ground that D failed to inform her of the risks of the surgery and that she would not have had the surgery if she knew of the risks.
The trial court instructed the jury about informed consent.
Procedural History:
Trial court found for D.
OK Supreme Court affirmed, found for D.
Issues:
What is required for a P to bring a cause of action in medical malpractice based upon a theory of informed consent?
Holding/Rule:
A patient suing under the theory of informed consent must allege and prove…
D failed to inform P adequately of a material risk before securing P's consent to the proposed treatment. (lack of consent)
If P had been informed of the risks he would not have consented to the treatment. (causation)
The adverse consequences that were not made known did in fact occur and P was injured as a result of submitting to the treatment. (injury)
Reasoning:
Some courts hold that doctors must disclose information which is in conformance with the prevailing medical practice in the community.
Canterbury held that the standard measure for the duty to disclose is conduct which is reasonable under the circumstances.
Thus, it cannot be judged by local customs.
A physician has the duty to inform the patient of all the material risks associated with the treatment in question.
A risk is material if it is likely to affect the patient's decision.
Dissent:
The locality rule should be used in determining whether the information should be disclosed.
Notes:
Most states are doctor focused RP standard; minority are patient focused RP standard, some are even specific patient based RP standard (OK, CA).
Doctor has defense if patient should have known risks, if patient would have had procedure anyway or if injury doesn't result.
