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
Hon. Jay Young (Ret.) is a retired judicial officer with decades of experience presiding over complex civil litigation matters. Following a distinguished career on the bench, Judge Young now serves as a mediator, arbitrator, and court‑appointed special master, and discovery referee. Judge Young brings a disciplined, impartial, and results‑oriented approach to dispute resolution. Judge Young is based in Nevada and accepts appointments statewide and nationally, subject to agreement or court order. He can be reached at 855.777.4557 or info@armadr.com
Known for judicial temperament, analytical rigor, and practical problem‑solving, Judge Young assists litigants and counsel in resolving high‑stakes disputes efficiently and with integrity and employing best practices. He is recognized by U.S. News and World Report’s publication Best Lawyers as Arbitration Lawyer of the Year.