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Informed Consent

Torts II - Intro/Informed Consent

Tort A civil wrong or injury, other than breach of contract, for which the law will provide a remedy
Negligence: Elements 1. Duty - legally recognized relationship btwn parties, req D to act certain way 2. Breach - failure D, meet req'd Standard of Care 3. Causation - nexus btwn D's conduct & injury to P. Factual (actual) cause, Proximate (legal) 4. Damages - $ award, lo
Breach - Reasonably Prudent Person Standard of Care D is held to the standard of care of a reasonably prudent person in the same or similar circumstances
Role of Custom in Determining Breach Generally, custom/industry practice may be used as evidence of what RPP would do under same/similar circumstances. NOT conclusive test (custom itself = unreasonable/inapplicable under circumstances)
Professional Standard of Care Ordinary member of the profession in good standing, under same/similar circumstances
Malpractice - Physician Standard of Care & Custom Custom becomes standard of care. Compliance conclusively demonstrates reasonable conduct, while deviation conclusively, unreasonable.
To prove medical malpractice - Offer affirmative evidence of custom using expert testimony, unless conduct so grossly apparent, layperson would be able to recognize
Adopted Patient Rule Doctor owes duty to inform the patient of all material risks incident to treatment
Rejected Ordinary Physician Rule Doctor owes duty to inform of risks that an ordinary physician would inform
Informed Consent - Material risks Any risks that would likely affect patient's decision EXCEPTIONS (where disclosure not required): known risks, patient's best interest, emergencies
Informed Consent Doctor must disclose all material information, including physician's personal interests in recommended treatment unrelated to patient's best interests
Standards of Care for informed consent Physician Rule (majority rule) - ordinary physician standard, community custom determinative. Patient Rule - disclosure of all material risks & alternatives unless obvious, emergencies, patient's best interest
Created by: PrGrd