F: Jury found for D and P appealed.
P’s Argument: D did not disclose material risks incident to the treatment prior to obtaining the consent of the P.
D’s Argument: D disclosed material risks surrounding a hysterectomy surgery and P’s alternative sufficiently.
Scott, p, sought treatment from D.
She was diagnosed with several fibroid tumors on her uterus.
She signed a routine consent to surgery form prior to the hysterectomy.
Afterward she was experiencing problems with incontinence, and she visited another doctor.
She was found to have a condition which allowed urine to leak from her bladder into her private parts.
She underwent three additional surgeries to correct her problem.
I: Whether the doctor breached a duty to disclose material risks to the patient prior to performance of the surgery?
R: doctor is liable in neg. if he does not inform the patient of his options and its risks before treating the patient Exception to the Duty to disclose:
There is no need to disclose risks that either ought to be known by everyone or are already known to the patient; or if the disclosure would alarm an emotionally upset patient; or where there is an emergency and the patient is in no condition to determine for himself whether the treatment should be administered.
A: The duty to disclose is the first element. Then proof that patient would have chosen no treatment or a different course of treatment had the alternatives and risks been made known, thus establishing a causation.
If the patient would have elected to proceed the element of causation is missing, and so to negligence. A causal connection between the patient’s injury and the doctor’s breach of a duty to disclose exists only when the disclosure of material risks would have resulted in a decision against it.
The final element is that of an injury.
The risk must have actually materialized, AND P must have been injured as a result of submitting to the treatment.
Co: consent is affirmative defense.
you have certain information to inform patient of the material
medical malpractice action a patient suing under the theory of informed consent must allege and prove
1. D physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment 2. if he had been informed of the risks he would not have consented to the treatment