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REALITY OF CONSENT; PHYSICIAN’S DUTY OF DISCLOSURE

Except as hereinafter explained, it is the duty of the physician or surgeon to disclose to his patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment.

Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one which is not commonly appreciated.

There is no duty to make disclosure of risks when the patient requests that he not be so informed, or where the procedure is simple and the danger remote and commonly understood to be remote.

Likewise, there is no duty to discuss minor risks inherent in common procedures, when such procedures very seldom result in serious ill effects.

However, when a procedure inherently involves a known risk of death or serious bodily harm, it is the physician’s or surgeon’s duty to disclose to his patient the possibility of such outcome and to explain in lay terms the complications that might possibly occur. The physician or surgeon must also disclose such additional information as a skilled practitioner of good standing [in the same or a similar locality] would provide under the same or similar circumstances.

A physician or surgeon has no duty of disclosure beyond that required of physicians and surgeons of good standing [in the same or a similar locality] when he relied upon facts which would demonstrate to a reasonable man that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended [treatment] [operation].

Even though the patient has consented to a proposed treatment or operation, the failure of the physician or surgeon to inform the patient, as stated in this instruction, before obtaining such consent is negligent; and renders the physician or surgeon subject to liability for any injury [proximately] [legally] resulting from the [treatment] [operation], if a reasonably prudent person in the patient’s position would not have consented to the [treatment] [operation] had he been adequately informed of all the significant perils.

NEV J.I. 6.10

BAJI 6.11

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.