When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc. But the jury decides whether an undisclosed risk would have caused a reasonable patient to decline the procedure, just like a jury decides whether the defendant in an auto accident case was driving in a reasonably careful manner. No expert testimony is allowed on either of those subjects.
Until the other day, I never had reason to consider whether there was another standard for the disclosure of risks – a professional standard. It’s very rare (and very risky) for a plaintiff to base a medical malpractice case solely on informed consent, where there is no claim that the defendant deviated from the standard of care in the performance of the procedure, or pre- or postoperatively. Consequently, in surgical malpractice cases, the attorneys (both plaintiff and defense) who contact us always want an expert who will opine on the surgical standard of care. If the expert is also needed to opine on an informed consent issue as well, that’s not something the attorney needs to discuss with us.
A recent First Circuit decision, Laureano-Quinones v. Nadal-Carrion, http://media.ca1.uscourts.gov/pdf.opinions/19-1139P-01A.pdf (1st Cir. 12/18/2020), has brought to my attention the fact that the Rhode Island standard is in the minority. In most states – and in Puerto Rico, where the Laureano-Quinones case arose – “a plaintiff must bring expert testimony to establish that a reasonable medical practitioner…would have divulged the information….Under Puerto Rico law, that is, courts determine the scope of a physician's duty of disclosure by looking to the prevailing medical practice and assess causation between the negligent…omission and the harm by asking what the physician could foresee as a normal consequence of his omission.” (Citations and internal quotation marks omitted.)
For brief descriptions of the two standards of disclosure, see https://www.nolo.com/legal-encyclopedia/medical-malpractice-informed-consent-29872.html and https://www.justia.com/injury/medical-malpractice/informed-consent/. For a good summary of the rationale behind the “reasonable patient” standard, see https://www.casebriefs.com/blog/law/health-law/health-law-keyed-to-furrow/the-professional-patient-relationship/canterbury-v-spence-4/.
As always, if you need a medical expert to opine on the risks that would have been disclosed by a reasonable physician, or on any other subject, Vident Partners is your best source.