*1 29, 2000. Decided November Kleinrock, for appellant. B. Gerard Murder-Ashley, Greg- Maria Attorney, Tom District Morgan,
J. Lohmeier, Attorneys, appellee. District Assistant J. ory v. HOWARD. A00A0987. KETCHUP (543 SE2d Judge. Chief
Johnson, that phy- consent provides of informed The common law doctrine known of the patients to inform and dentists have sicians inform and to procedure treatment or risks of a proposed material except All of the states alternatives. of available doctrine.1 Since informed consent recognize now Georgia Yarn,2 has not Georgia recognized Young 1975 decision court’s their patients to advise professionals on the of medical any duty part nor procedure treatment or risks of a proposed of the known material alternative treat- availability of reasonable to advise of the any duty of informed the common law doctrine ments, implicitly rejecting thus decided, because physi- Yarn was Young wrongly Because consent. into of informed consent adopted dentists have the doctrine cians and standards, of develop- ethical and because their own professional decided, over- was we now law since v. Yarn Georgia ments it. Hence- cases which have followed decision and all the rule that states, will state, like that of the other the law of this forth doctrine of informed consent. the common law recognize told him that he Ketchup and Joseph Dr. A. J. Howard examined was sched- procedure a root canal on one of molars. The needed office on that returned to Dr. Howard’s Ketchup uled for a later date. inform- Howard, Dr. without ever for the root canal procedure. date alter- any or of risks involved with ing Ketchup treatments, then the root canal. performed native numb- canal, experienced continuous Ketchup Since his root root canal chin, on the side where the gum his lower lip, ness of have examined neurologist An endodontist and a performed. was is the result of den- concluded that the numbness and have Ketchup the root canal damage during to a nerve tal caused neuropathy, summary con Appendix provides law on the issue of informed The attached Georgia alone on this issue. and confirms that stands in each of the other 49 states sent injury apparently permanent. nerve Ketchup malpractice, alleging sued Dr. Howard for dental (1) negligently injected agents perform- Dr. Howard anesthetic while (2) improper perform canal; the root used materials the root (3) Ketchup damage canal; and failed to inform of the risk of nerve resulting summary judg- from the root canal. Dr. Howard moved for *2 granted ment, and the trial court his motion.
Ketchup appeals, contending granting the trial court erred in summary judgment portion upon on that of his claim based Dr. How- ard’s failure to inform him of the risks of the While we Young wrongly duty conclude that v. Yarn declared that there is no proposed inform treatment and must ognition of the known material risks of a course of Georgia’s overruled, we farther hold that rec- apply prospectively.
of the informed consent doctrine must summary We therefore are constrained to affirm the trial court’s judgment ruling based on the law as it existed at the time of that rul- ing. Young part
1. The court in v. Yarn construed that of the Georgia Medical Law, Consent Code 88-2906, now 31-9-6, OCGA provides: surgical A consent to or medical treatment which discloses general in terms the treatment or course of treatment in given duly connection with which it is and which is evi- writing signed by person in denced or or other persons pursuant authorized to consent to the terms of chapter conclusively presumed this shall be to be a valid misrepresentations consent the absence of fraudulent obtaining material facts the same. construing language, physician’s court found that a
duty general to inform the terms does not include a Thus, to disclose the risks of treatment. held, the court a cannot sustain an action on based doctor’s failure to warn of the risks of treatment.3 We conclude that wrongly erroneously applied the court decided the case because it statutory well-settled rules of construction, and it did not consider constitutionally protected liberty the ramifications of certain inter- ests. (a) precisely misapplied In order to understand how this court statutory important construction, rules of it is remember legal principles, “consent” the medical sense involves two distinct principle both derived from common law doctrine. The first involves Id. at 738-739 battery, meaning i.e., consent which avoids consent, “basic” sitting “touching.” while Cardozo observed As Justice to a the consent being “Every Appeals of adult York, human in New the Court of right done years what shall be to determine mind has and sound performs operation surgeon body; an without who and a with his own ] he assault, for which is liable an commits consentí “touching” damages.”4 consent is without words, a medical In other touching inten- consent: constitutes without like other battery an action will lie. for which tort of tional principle context in the medical of consent The second autonomy competent of a consent, which addresses “informed” patient he will allow or refuse. medical treatment to determine what Dept. Rehnquist Director, Mo. noted Cruzan v. Justice As opinion, the United States Health,5 later in this discussed right is held more as 1891 that “‘no as far back Court observed ” carefully guarded, by than an the common law’ sacred, or is more right possession free and control of his own individual’s require bodily integrity restraint, notion of embodied from generally required for medical treat consent is ment that informed essentially professional a medical involves ment. Informed fully informing *3 pro to the of the risks of and alternatives right posed dimin to decide is not treatment so that the by these two information. We must consider a lack of relevant ished principles considering Young this court in v.
of
when
what
consent
interpreting Georgia’s
Law.
in
Medical Consent
Yarn held
interpret-
judge’s
eloquently
in
described the
task
Roscoe Pound
object
interpretation
pointed out that the
of
is
when he
statute
intended to establish or the
the rule which the lawmaker
to discover
intent with
say,
That is to
to dis-
which the lawmaker made the rule.
that
lawmaker attached to the words so
the sense which the
cover
meaning the lawmaker
could derive from the words the same
others
judicial
convey.6Ordinarily
accomplishes this, in
one
the
intended to
meaning
by looking
used and the
sense,
at the literal
of the words
employed.
in which the words are
context
By
plain language
portion
looking
of the 1971 Geor
the
of that
to
Young
gia
Yarn decision
Law which the
v.
Medical Consent
apparent
statute,
that the
addressed,7 in the context of the whole
it is
legislature
consent which avoids
intended to address
“basic”
93)
1914),
(App.
Society
Hosp.,
York
imply recognized Georgia. not In the informed plain language Young effect, absence of Yarn to that court beyond legislative concluding went an intent action based Georgia. lie in lack informed consent will not question correctly Furthermore, on the whether this court interpreted analysis Young statute, we Yarn find opinion published year Law a Mercer Review article10 less than a compelling. after v. Yarn decision relied heav decision ily Dictionary “treatment,” on Black’s Law definition rather than “disclosure,” on the terms “consent” and which are also in the used points analysis upon out, statute. As this article had the turned likely terms, definition of of those it either seems the court would recognized every have the doctrine of informed consent like other jurisdiction country. “One cannot consent that of which he is aware; it then follows that the cannot be held they surgery consented to the risks if are not informed of these risks.” journal correctly Moreover, a 1985 bar article12noted that OCGA § 31-9-6 no contains reference whatsoever to the common law doc- reading trine of informed “a consent and that literal of the statute student of tort law would lead one to conclude that *4 potential relates to basic consent in terms of actions for assault 8 Early Early, Jove, Ga. See 269 416 SE2d Hollowell v. 247 Ga. 430) (1981). 678, 681 SE2d 9 88-2901; 88-2902; 88-2903; 88-2904; especially Code §§ § 88-2905. 10 Hodge, Surgery Richard Consent Elective Valid Even If Doctor Didn’t of Warn Risk, 28 Rev. 377 Known Mercer L. 11 p. Id. at 12 Law, Gary Smith, J., Georgia’s pp. Medical 21 Ga. No. Consent St. Bar 58 provides lib- battery.” be itself the statute And while
and erally require per- would construed,13even liberal construction eliminating accepted an interpretation of had the effect mit an mention. did not even the statute doctrine that law common is indeed that this statute has held Furthermore, this court ordinary derogation rules of stat- Therefore, the law.14 of the common strictly require con- utory the statute construction statutory principle construction of that well-settled Had strued.15 applied would have been Yarn, the result correct been limit the breadth of of the law basic to a codification of the statute indicating leg- any language particularly in the absence consent, recognized”16 “universally abrogate doctrine intent to islative informed consent. (b) legislature the doctrine had intended to abolish if the Even likely by enacting that the 31-9-6, it seems OCGA impact its had declared unconstitutional would have been statute liberty constitutionally protected been interests discussed below Perhaps McA Prevatte,17 State Ga. v. Zant v. because considered. yet Dept. Director, had not been Mo. Health19 and Cruzan v.
fee,18 constitutionality question neither was decided, of the statute’s Young v. Yarn decision. nor addressed in the raised Supreme Young Yarn, the cases, decided after In two of these liberty pro- persons Georgia interest, held that all Court of regarding Georgia Constitution, decisions to make all tected long they legally competent.20This con- care, so as are their right liberty stitutionally protected to refuse all includes the interest necessary to save treatment, medical the even where the life.21 Supreme held that the Due Cruzan, Court the United States to the federal constitu- Clause the Fourteenth Amendment Process tion competent person liberty protects interest.22 A that identical refusing liberty unwanted Due Process Clause interest under the medical treatment.23 law doc- Cruzan, the common Court noted As in. constitutionally pro- corollary informed consent is a to this
trine of
13
(a).
OCGA 31-9-6
293) (1982).
Brown,
Butler v.
162 Ga.
SE2d
777) (2000).
(1) (528
Cleveland,
Albany Urology
SE2d
Clinic v.
16 Smith,
p. 140.
21 Ga. St. Bar J. at
59 constitutionally in interest and is reflected these liberty firmly tected in v. Yarn that this court observed protected rights.24 Though Young doctrine is courts have never decided whether this Georgia “[t]he state,”25 Georgi- this effectively in it nevertheless denied applicable It informed consent decision. ans benefit doctrine of its of that, in of the common law doctrine seems clear the absence consent, constitutionally liberty interests protected that individuals to make all decisions their medical enjoy regarding meaningless. is rendered
It v. credibly argued Young has been that court’s decision effectively right Yarn and real to make inappropriately placed A completely patient’s physician. physi- treatment decisions with could, or right example, encourage patient cian that induce undergo risky yet without unnecessary surgery making known or either attendant available alternatives. This would leave patient the uninformed even if remedy, procedure without a disfigurement, resulted death or unless the physician negligently performed surgery.26 Yarn, to the Contrary holding Young v. Georgia the law in cannot leave such a with no patient recourse. Rather, we that a medical hold professional Georgia, including dentist, must inform a patient of material risks of a proposed treatment or which are should known, or and must they inform a of available alternatives to the proposed procedure holding or treatment. The v. Yarn to the Young contrary hereby overruled.
2. define apply legal Courts and duties professionals have to clients, their and but do attempt define standards of recognized care. The legal duty a medical professional owes to or her is to exercise that of degree ordinarily skill and care of employed by members the same medical profession under same similar substantially circumstances.27 What level skill and care actually any given is in case is a question of the standard of recognized by care profession the medical and generally must be proven through expert testimony.28
As
by this court in
interpreted
v. Yarn and its
Young
progeny,
effectively
OCGA 31-9-6
the judgment
substitutes
of this court for
profession
the medical
as to the
standard
care
the issue
this,
of informed consent. To understand
one needs
look
at the
24 Id. at 269.
25
Yarn,
supra
v.
at 738.
26 Hodge,
p.
28 Mercer L. Rev. at
(1) (a) (530
Blake,
App. 653,
(2000); Hailey
Wilborn
v.
Ga.
SE2d
v. Bla
(2) (433
lock,
209 Ga.
(
The first Code of Medical Ethics was AMA edition, Elements of entitled Fundamental tion the right “[t]he Relationship, provides Patient-Physician has the physicians the bene- to receive information from discuss appropriate risks, treatment alternatives.”29 And fits, and costs Ethics, entitled Informed 8.08 of the AMA Code Medical Section Consent, *6 provides patient’s right “[t]he self-decision can be effec- of possesses enough tively only patient if the information to exercised organization intelligent Because AMA is an an choice.” the enable composed experts medicine, therein should be understood to the code of of field of its ethics and the physicians prescribed of duties profession the standard of care of the on the issue of informed
reflect recognize We the court to that the Code of Medi- consent. cal Ethics sets forth consent.30The are not first profession’s the medical standard on informed citing Indiana, of the 1992 version Court of Ethics, the Code Medical said: prepared Ethics,
The 1992 on of Medical as the Council Code Ethical American Medical and Judicial Affairs the profession’s Association, sets forth the medical standard on patient’s right informed It as “The consent. reads follows: effectively patient if self-decision can be exercised the enough intelligent possesses to information enable an patient choice. The should make his own determination on physician’s obligation present the medi- treatment. is to accurately patient cal facts to the to or individual responsible management physician to for his care and make recommendations for good practice. accordance with medical obligation help patient an make ethical to among therapeutic
choices from alternatives consistent good practice. Informed consent is a basic (1) policy exceptions permitted social for which are where patient incapable is unconscious or otherwise of con- (2) senting imminent; from failure to or and harm treat is poses psychological such when risk-disclosure threat of indicated. Social a serious patient medically to the contra- detriment as to be paternalistic policy accept does not physician may remain divul- view that the silent because gence might prompt forego therapy. to needed 29 (Emphasis supplied.) (Ind. 1992). Mernitz, See Culbertson v. 602 NE2d Rational, informed should not be to act expected circumstances, even uniformly, agreeing under similar treatment.”31 refusing Similar ADA of Ethics language Code also reflects III, standard of care for the dental Part Section 1 profession. Ethics, Principle: American Dental Association Code of entitled Autonomy, provides respect “[t]he Patient dentist has rights to self-determination and Sec- confidentiality,” tion 1A provides pro- “[t]he dentist should inform the of the treatment, alternatives, posed in a manner that allows the become involved in decisions.” treatment These AMA and ADA ethical standards embrace the doctrine of consent, as does the law in 49 of Georgia’s all sister states. Yet in such Ferrier,33 decisions as Hyles Cockrill32 and Padgett which apply holding Yarn, in Young v. this court has held expert inadmissible that failure testimony of a medical professional to inform a patient of the of a proposed and/or rea sonable available alternatives is a breach standard of care. court, That Yarn, order uphold Young was rule such expert the critical issue standard of care is irrelevant and inadmissible is strong origi evidence nal decision was wrong, especially view the ethical standards of professions medical and dental discussed above. These decisions *7 ignored the well-settled that the standard deter principle of care is by mined the medical by not the profession, courts. These decisions are also overruled.
3. Subsequent to the Young decision, v. Yarn the legislature 31-9-6.1, enacted OCGA which requires § medical to professionals provide information to their patients concerning some, the risks of all, medical procedures. but That Code section is limited to surgi- cal procedures performed under general anesthesia, anesthe- spinal sia, or major regional anesthesia, amniocentesis, diagnostic diagnostic procedures which injec- involve intravenous or intraductal tion of contrast material. legislature Because the is act presumed with full knowledge of the of existing law, state the enactment the 31-9-6.1, OCGA a limited form of consent, § can be seen as expanding the applicability of the doctrine of in informed consent Georgia from immediately its status following the v. Yarn deci- sion. Because we have concluded the Young v. Yarn case was decided, wrongly OCGA 31-9-6.1 cannot be said to have limit- 31 Id. at 103. (1) (312 124) Ga. Ga. of informed the common law doctrine effect on the recognition in this case. we announce
consent which the standard helpful determining is fact, In OCGA 31-9-6.1 or dentist part on the of a duty physician measure the which to by treat- medical proposed her of risks inherent inform his or sis- applied Georgia’s major being There are two standards ment. standard, sometimes One is the medical professional ter states. lay standard, other is the the standard. The referred to as traditional risk materiality the or prudent referred to as either sometimes standard.34 standard, required the professional physician Under prudent practi- a reasonable and medical those risks which disclose In under the same or similar circumstances. tioner would disclose cases, to what extent a questions most whether and risk must be determined particular dentist has a to disclose duty care on which establishes standard of through expert testimony from stan- departure and the or dentist’s physician’s the issue dard.35 contrast,
In standard the disclosure lay physician’s under measured need for information rather duty to be medical While testi- profession. expert than the standards allegedly would be to establish that the risk which mony known, the injury lay caused the is one which is known or should be ordinarily require would not expert regarding standard disclose; standards to establish physician’s rather, it is for determine whether jury significant risk patient’s position considered the making reject the decision to have or treatment.36
As the
out in Hook
Appeals pointed
South Carolina Court
Rothstein,37
greater
country
number of states
follow the
standard,
though
many
almost as
states adhere to the
professional
lay
Georgia,
legislature
spoken
standard.38
to the standard
here,
we will apply
standard.
OCGA 31-9-6.1 is a limited codification of the common
Though
discussed,
as previously
expresses
law doctrine of informed consent
*8
AmJur2d,
Healers,
Physicians, Surgeons
(1981);
&
See 61
Other
188-189
see also
§§
(Me. 1980).
Henderson,
1123,
Woolley v.
418 A2d
(316
690)
See,
Rothstein,
1984);
e.g.,
(App.
Woolley, supra;
Hook
281 S.C.
SE2d
787)
(1976),
Bly Rhoads,
superseded by
4. Courts have a rightly preference following and precedent adhering decisis, doctrine of stare but obviously must be will- overrule when prior necessary. decisions As Chief Ben- Justice Suarez,40 ham noted dissent Etkind v.
[t]he rule of stare
one,
decisis is wholesome
but
should
sanctify
be used to
and
error.
perpetuate
deprecate
We
and
rash
distrust
innovation as much
as
most conservative
but
magistrates ought,
it has never been the
doctrine of
court of last resort
the law is
be a
safe
refuge and
for all
asylum
the errors that
into
Courts,
it.
like indi-
creep
viduals,
deliberation,
but with more caution and
must some-
times reconsider what has been already carefully consid-
ered,
their
rectify
own mistakes.41
overruling
previous
many
decisions raises
theoretical
issues,
one which is the
application of
new rule to other cases.
Having decided to overrule the
Yarn
prog-
decision and its
eny, we must now decide the
application
breadth of
of the new deci-
sion.
are four possibilities:
There
full retroactive application; partial
retroactive application; partial prospective application;
pro-
and pure
spective application.
choice of which to employ
upon
turns
defendant,
whether
and those in the same position,
justifiably
(a) (3).
OCGA 31-9-6.1
210)
In v. one the two Court cases Supreme Robinson concurrence cites as 31-9-6 establishes special holding OCGA § duty Georgia that there is no to disclose the risks medical treat- ment, was from Supreme addressing question Court a certified regarding Voluntary the federal court Steriliza- appeals Georgia Act, question tion OCGA 31-20-2. The addressed Voluntary requires Court was whether Sterilization Act to disclose risks associated with sterilization possible 42 (Citation omitted.) punctuation Dufour, Proper Application of Thomas Judi Doctrines, Overruling Tort cial Decisions Established 65 B.U. L. Rev. n. 36 Decisis, id.; Koven, Through See & Kocourek Renovation of Common Law Stare 29 Ill. L. Rev. Yarn, Young supra. v. 3) 470, 473, (1999); Kelly Reid, Arrington, n. 1 v. 238 Ga. SE2d Renfroe (2) (366 Yarn, Young supra. Ga. procedure Although validly consent to the before could Young the Court referred to OCGA 31-9-6 and Yarn rely opinion, reaching fact, the the Court stated that the it did not its In either decision. (OCGA Georgia Medical Consent Law 31- 9-6), apply interpreted, specif- v. Yarn did not because it ically procedures. excluded sterilization The Court noted that sterili- procedures governed by Voluntary zation to be were the terms interpret meaning Act, Act, Sterilization then went on not the at issue statute case. Albany Urology Cleveland,47 the Clinic v. issue was not special says,
whether, as concurrence a failure to disclose the *10 procedure support negli- risks of a medical gence. a claim for medical duty physician Instead, the issue was had whether to dis- namely drug life, use, close to his factors of his his might adversely physician’s performance.48 though affect the Even Young Yarn, the Court cited physician it not did decide issue of whether a has a common law to disclose the risks associated particular procedure. Albany fact, with a Urology specifically applicability § 31-9-6.1, dealt OCGA requiring involving performed surgery consent cases general while a is under anesthesia. While minds may language Albany Urologypresents differ as to whether the in. an correcting obstacle to this court own error in its v. Yarn and its progeny, disagreement there is little room for that the mention of the principle Supreme common law of informed consent in both Court cases was dicta. Since the Court’s use or of our mention merely authority cases overrule dicta, was we believe this court is within its changed prin- cases we decided which law common ciple informed consent this state. Finally, argues Ketchup brief, 6. in his that Dr. Howard failed to general procedure inform him the and, nature the root canal requirements therefore, 31-9-6, violated OCGA which sets out the establishing procedure. Ketchup’s for valid consent to However, complaint allege does not that Howard Dr. failed to inform him of the general procedure of a nature root canal or that Dr. Howard did Ketchup’s perform procedure.49 consent the root canal And Ketchup complaint allegation never his amended to include an undisputed Ketchup lack of basic consent. The evidence is was during procedure told one visit that he needed the and he sched- appointment procedure an uled to have time, procedure. done at a later then returned to Dr. Howard’s office and submitted This
47 Supra at 298. 48 Id. Heath, (2) Spikes Compare 188-190 consent, which, as we have held establishes basic conclusively herein, addresses. is all OCGA 31-9-6 claim-
Rather, Ketchup malpractice, Dr. Howard dental sued in performing the standard of care that Dr. Howard breached him of potential complications canal and in to advise failing root attempt root Insofar the brief and enumeration of error canal. as an allegations complaint to include alle- Ketchup’s to broaden inform Ketchup general that Dr. Howard failed to gation and did not have nature of the root canal therefore canal perform procedure, attempt the root Ketchup’s alleged Ketchup’s Since this claim was neither impermissible.50 evidence, nor court, raised the trial complaint, supported by we will not consider here.51 Smith, J., J., Barnes, P. P. Judgment Pope, Eldridge, affirmed. Mikell, JJ., Andrews, J., Blackburn, concur. P.
Ellington, Phipps J., Miller, JJ., specially. P. concur Ruffin
Appendix.
Alabama: A
all
physician
must inform
of material
Otwell v.
Bryant,
associated with a medical
497 S2d
(Ala.
(Ala. 1985).
Smith,
Fain v.
1986);
479 S2d
Expert
establish whether
dis-
closed all risks which medical
practicing
general
doctor
same
line of
the nation would have
Code
practice
disclosed. Ala.
6-5-
Storey,
Wells v.
484;
Ala.
LEXIS
Civil Action No. CV-96-391
(November
(Ala.
Carroll,
Hawkins v.
1999);
676 S2d 338
*11
(Ala. 1980).
Chastain,
Baker v.
1996);
932,
389 S2d
935
The standard
used is whether a
in the
person
patient’s position
reasonable
would
decided to
if
procedure
have
the
informed of all
undergo
adequately
Otwell,
Fain,
significant perils.
supra at
supra;
1154-1155.
(a)
2. Alaska'. Alaska
provides:
Stat.
09.55.556
A
provider
health care
is liable for failure to obtain informed
patient
consent of a
if the claimant
aby prepon-
establishes
derance of the evidence
the
provider
failed to
inform
patient
of the common
and
risks
reasonable
alternatives
treatment or
proposed
A
must
physician
disclose
risks and benefits which a reasonable
need
would
to know
order to make an
intelligent
and
50
(482
344)
State,
generally
754,
Lowe v.
1
See
267 Ga.
n.
SE2d
51
(3) (483
294)
Hightower
Co.,
71,
(1997); English
See
v. Kendall
72
(1) (421
Liberty Mtg.
141,
Corp.,
v.
Ga.
(Alaska
Mallin,
1145,
858 P2d
informed decision. Korman
1993).
physician
a
under a
to warn
Arizona:
3.
Whether
specific
possibility
treatment
result of
adverse
gen-
particular
depends upon
case and the
the circumstances of
practices
physician’s profession
Arizona,
in the state of
eral
and the custom of the
profession
medical
to
Wisner,
must
established
warn
be
(823
testimony.
by expert
170 Ariz.
P2d
Potter
(534
1339)
1991);
(App.
Nelson,
4. Arkansas:
mation
Stat.
16-114-206
states
infor
regarding
given except
be
alternatives must
emergencies.
applies
physicians
statute
both
and dentists.
The standard used to measure
is whether
nondisclosure
a reasonable
patient’s
person
position
in the
to the
would
withheld consent
had the
or
material risks been disclosed. Aron
840)
Harriman,
son
Ark. 359
SW2d
physician
A
must disclose available choices with
California:
respect
tially
(1972).
proposed therapy
dangers inherently
poten-
and the
Grant,
involved
each. Cobbs v.
P2d
Cal.3d
determining
potential peril
The test for
whether a
must be
divulged
materiality
patient’s decision,
is its
not the custom of
physicians practicing
community.
in the
Avedon,
Arato v.
5 Cal.4th
598) supra
P2d
Cobbs,
at 10-11. Material informa-
tion
that which the
knows or should
would
know
be
regarded
significant by
person
patient’s posi-
as
deciding
reject
accept
pro-
when
tion
whether to
or
the recommended
supra;
Arato,
Thomas,
cedure.
Truman v.
27 Cal.3d
P2d
determining
jury
causation,
must decide what a
prudent patient’s position
in the
would have
if
decided
ade-
quately
significant
supra
perils. Cobbs,
informed of all
at 11-12.
requires
particular
6. Colorado: Colorado
procedure
that substantial risks of a
patient.
or treatment must be
A
disclosed to the
substan-
medically significant
risk
tial
is one that
to ought
physician.
known,
decision and is
substantiality
be known,
particular
of a
risk must be determined
basis of
expert testimony demonstrating
given by
the extent of information
reasonably
physicians practicing
specialty
careful
same
*12
(Colo.
community.
similar
Zook,
same or
423,
Gorab
943 P2d
(Colo. 1970).
1997);
Pirkey,
466,
466 P2d
Mallett
472-473
physician
language
lay person
A
disclose,
7. Connecticut:
can
must
concerning
understand,
information that he has or should have
proposed
viable alterna-
the
treatment and all
of
risks of
the nature
any dangers
material
to an
involved therein
are
tives
patient.
by
person
intelligent
A
such as the
risk
choice
a reasonable
person,
physician
in what the
knows
is material when a reasonable
signif-
patient’s position
be,
to
attach
would
or should know about the
deciding
forgo
proposed
to
treat-
to the risk in
whether
icance
ment.
Hosp.
Logan
Assn.,
A2d
subject
exception
duty
that there is no
to disclose
to
when
likely
bring
duty
harmful
disclosure
disclose
about
results.
depends
prac-
general
on the factual circumstances
profession
locality;
tice followed
the medical
the custom of
profession
by expert
the medical
testimony.
to warn must be established
(Del. 1974),
Garrison,
Coleman v.
11. Idaho: The issue of informed consent
is
Idaho Code
governed by
be
person
39-4304: Consent shall
valid if the
giving
sufficiently
is
for,
aware of pertinent
of,
facts
the need
respecting
nature
significant
risks ordinarily attendant
such a
receiv-
upon
patient
ing care,
permit
as to
or
of such
giving withholding
a reasonably informed decision. Disclosure must
be made
ordinarily
would
be made and
under
given
the same or
cir-
similar
cumstances
a like
physician
good standing
practicing
same community. The
show that a
person
must
reasonable
would not have consented to the
a full
proposed procedure had
adequate disclosure been made at the time consent
originally
was
465)
Carter,
given.
452, 457-461,
Sherwood
a medical procedure. Expert necessary to establish reasonably whether a has with the standard of a physician complied (Ind. Mernitz, 602 Culbertson v. NE2d prudent physician. 1992). A physician recommending particular procedure gener-
14. Iowa:
all
risks involved
ally
duty
disclose to the
material
duty
is measured
physician’s
with the
disclose
need
access to all information material
to mak-
to have
medical proce-
truly
regarding
proposed
informed decision
risk would have
must show that disclosure
plaintiff
dure.
plaintiff’s
reject
led
the medi-
position
a reasonable
cal
a different course of treatment. Pauscher v.
choose
(Iowa 1987).
Center, 408 NW2d
Iowa Methodist Med.
of an
has a
emergency,
15. Kansas:
the absence
incident
to a
medical
dangers
pro-
disclose
risks and
make
which a
under
practitioner
cedure
*14
by
or similar circumstances. Causation is determined
look-
same
in the
have
prudent person
patient’s
at what
would
position
suitably
if
informed of all
Funke
perils bearing significance.
decided
(512
539) (1973).
Fieldman,
v.
23. Mississippi: undergo whether determining prudent patient if the infor- testimony necessarily required treatment. is not Expert Parvin, Hudson v. knowledge laymen. mation is a matter within (Miss. 1991). 582 S2d nondisclosure, produce
24. Missouri: To
must
prove
show what
a reasonable
expert
physician
disclosures
would have made under
similar circumstances. Wilkerson v. Mid-
(Mo.
1995).
Cardiology,
America
908 SW2d
25. Montana:
to make disclosures that a reason-
Physician
duty
able
under similar circumstances would make so a
intelligent
can make an
decision about whether
to submit
to the
36) (1972).
Itoh,
treatment. Collins v.
which a doctor has a
to disclose information that a reasonable
practitioner
same field of
would disclose. Smith v. Cot-
practice
ter,
28. New
A
Hampshire:
doctor has a
to inform his
of rea-
Corbett,
sonable risks involved in a procedure. Folger
29. New A Jersey: physician should describe the material risks inher- ent or treatment. The measuring test for the material- ity of a risk is whether a patient reasonable would consider the risk (733 456) Mastromonaco, material. Matthies v. 160 N.J. 37 A2d (1999).
30. “objective” standard; New Mexico: New Mexico has an adopted the extent of disclosure required knowledge is based on the or skill of ordinary Demers, an patient physician. Gerety v. 92 N.M. 410- (589 180) (1978). 411 P2d
31. New York: The doctor a duty to disclose to the the rea- patient sonably foreseeable risks and benefits involved as a reasonable prac- titioner under similar circumstances would disclose. N.Y. CLS Pub. (d) (1999). Health 2805 A
32. North Carolina: doctor must disclose risks in with accordance the standards practice among profession members of same and training experience
with similar and situated same or communities. N.C. Gen. Stat. 90-21.13 similar Dakota: An North part 33. of the overall integral physician’s obliga- is the to disclose the material risks of which the patient duty tion to Reichert, knows or should know. Kershaw v. physician NW2d (N.D. 1979). (N.D. 1989); Herr, Winkjer 277 NW2d 34. Ohio: Patients must be told of risks which a reasonably prudent would disclose. Turner v. Children’s Hosp., physician 76 Ohio App.3d (602 423) (1991). 541, 554-555 NE2d
35. Oklahoma:
A physician
duty
has a
disclose all material
fully
risks,
on what
patient
based
needs to know
order to make a
(686
Smith v.
Reisig,
Scott v.
OK
decision.
P2d
557-558) (1979).
Bradford, OK
P2d
A
Oregon:
risks,
36.
if
physician
explain any
must
the patient
requests
information,
further
physician must disclose
substan-
risks,
tial
material
detail
unless it would be detrimental
to the
ORS
677.097.
patient.
The test as to the further explanation
on the standard
practice
based
medical practi-
tioner. Tiedemann v.
Therapy Consultants,
Radiation
38. Rhode Island:
must
Physician
disclose risks that would be mate-
rial to a reasonable
person
position. Under this rea-
patient
sonable
approach,
claiming uninformed consent
need not support his claim with an expert opinion. Wilkinson v.
Vesey,
39. South Carolina: Physician must disclose risks that a reasonable
medical practitioner would disclose under
the same circumstances.
Under this reasonable physician approach,
must support a
claim of uninformed consent with expert
testimony. Hook v. Roth
stein,
40. South Dakota: Physician must disclose risks that would be mate-
rial to a reasonable
the patient’s position. Although expert
not required to establish the scope of the physician’s
to disclose
information to the patient, expert testimony may be
necessary to prove other matters
such as risks of treatment
Madison,
Wheeldon v.
alternative treatments.
73 must disclose risks that a reasonable medical Physician 42. Texas: would disclose. Under this under similar circumstances practitioner must a claim of physician approach, patient support reasonable Scott, 412 expert testimony. uninformed consent Wilson v. SW2d (Texas 1967). (1987); Farr, 43. Utah: Utah Code Ann. 78-14-5 Ramon v. 101 Utah (770 131) (1989). P2d Rep. Adv. must that would to Physician
44. Vermont: disclose risks be material testimony a reasonable is not person position. Expert needs, the patient’s may needed to establish informational but be such technical required prove to matters as risks. Small v. Gifford (349 703) (1975). Vt. 552 A2d Hosp., Mem. Physician
45. must disclose risks that a reasonable medical Virginia: under similar circumstances would disclose. A practitioner patient testimony must introduce what information should expert prove 113-114; disclosed Hunter v. 123 Va. physician. Burroughs, 366-367) (222 Rhoads, 216 Va. Bly SE 783) (1976). Washington: patient prove
46.
Elements
must
an uninformed con-
sent claim are that
failed to inform of material
facts
treatment,
consented to treatment
regarding
being
without
facts,
of such
fully
reasonably
material
prudent patient
if
would not have consented to the treatment
informed of such mate-
facts,
rial
treatment
caused
proximately
injury. Expert
and
testi-
treatment,
mony
proposed
must be used
establish nature of
antici-
treatment,
pated
proposed
recognized
results
alternative
treatment,
serious
Har-
recognized
proposed
risks
treatment.
483) (1983).
Parke-Davis,
Inc.,
beson v.
P2d
Wn.2d
Backlund v. Univ.
Washington, 137 Wn.2d
P2d
47. West Virginia: Physician must disclose risks that would be mate-
person
rial to a reasonable
in the patient’s position. Although expert
needs,
prove patient’s
informational
expert
testimony ordinarily is needed to
such
as the
prove
things
risks of the
proposed
and alternative treatments. Cross v.
48. Wisconsin:
must
facts necessary
disclose
to enable a
reasonable
under circumstances
similar
to those
facing
exercise
to consent
intelligently
right
reject
Co.,
treatment. Scaria v. St.
Fire &c.
Paul
Ins.
68 Wis.2d
NW2d
must disclose
that a rea-
Wyoming: Physicians
dentists
similar
practitioner
sonable
circumstances would disclose.
Under this
physician approach,
support
must
Bell,
testimony. Roybal
claim of uninformed consent with
expert
1989);
Havens v.
Andrews, in by majority affirming I concur rendered the judgment in grant summary judgment trial court’s favor of Dr. Howard on by claim that Dr. Howard committed Ketchup’s malpractice failing him the procedure. judgment inform risks of the root canal favor of Dr. Howard was mandated because the Georgia consent law set forth in OCGA 31-9-6.1 did not require disclo- § sure of those risks.
I write that the separately majority state opinion’s attempt by judicial fiat to prospectively expand Georgia limitations of by informed consent law the General adopted Assembly OCGA 31-9-6.1 the exercise of usurps legislative power define the doc- § trine of informed consent in Georgia beyond and is a matter of this authority majority Court. The does not contend that informed consent law set forth in OCGA 31-9-6.1 Dr. How- § ard to inform of the risks involved with Ketchup the root canal proce- contrary, dure. To the clearly statute does not apply doctrine of informed Instead, to this majority pro- claims for prospective application only [,] that: “Henceforth the law of state, states, this like that of the other 49 will recognize common law doctrine of informed consent.” Whether should Georgia recognize the doctrine of informed consent a form similar to that adopted by other states is not the issue. The issue is authority whether to do so rests with the courts or the General Assembly.
Prior
to the 1988 enactment of the informed consent
law in
31-9-6.1,
OCGA
both this Court and the Supreme
§
Court of Georgia
held that
the Georgia Medical Consent Law at OCGA 31-9-6 estab-
lished that there
was no
Georgia
disclose the risks of medi-
(306
Dickson,
cal treatment. Simpson
v.
App.
Ga.
404)
(306
(1983);
SE2d
Parrish,
Robinson v.
251 Ga.
SE2d
922) (1983). Accordingly, under pre-1988
precedent,
common law
failure to disclose such risks would not support a claim for profes-
sional negligence. Albany
Cleveland,
Clinic v.
Urology
272 Ga.
777)
SE2d
(2000),
Yarn,
citing Young v.
Since informed consent statute at OCGA nothing Georgia Dr. Howard inform of the risks of the Ketchup 31-9-6.1 § issue, against dental at the common law rule requiring Allen, disclosure (1985) (common Verre v. applies. Moreover,
law rule to dental applicable procedure). above, this Supreme Georgia as noted both Court and Court beyond held it of this Court to the lim power expand health requirements imposed upon providers ited risk disclosure care so, majority’s OCGA 31-9-6.1. It follows that to do by attempt intentioned, ignores contrary Supreme however well Court of Geor Assembly. and invades the of the General gia authority province Blackburn, Judge I am to state Presiding Judge authorized Ruffin and Miller in this Judge join opinion. Judge, concurring specially.
Ruffin, in Presiding I for the reasons set forth judgment concur concurrence, I I write fully agree. with which Judge special Andrews’ distinguish majority’s attempt to address separately Court’s Albany recent decision Urology Clinic v. Cleve- land,52 the majority notes, As the narrow issue to be decided in Albany Clinic was whether a Urology physician could be sued for failing disclose cocaine use to his patient before performing surgical issue, analyzing however, the Court extensively discussed the state of the law governing the doctrine of informed con- sent. The Court expressly stated that
[p]rior Georgia physicians were not required to dis- close to their patients any the risks associated with a par- ticular medical treatment or procedure. ... As established by pre-1988 precedent, law, under the common evidence of a failure to reveal the risks associated with medical treatment is not even admissible in support a claim professional negligence. As recognized by Georgia’s appellate courts, this common law rule could be changed only by legislative act.53 The Court then noted that the legislature modified the common law rule in 1998 by an passing statute, OCGA 31-9- 6.1. stated, As the Court Georgia
[t]he informed consent statute impose does not general requirement upon disclosure physicians', rather, requires physicians to disclose only those listed in factors (a). OCGA 31-9-6.1 . . [I]n . situations not covered statute’s language, the common law rule must still govern, as courts are without authority to impose require- disclosure ments upon physicians in addition to those requirements already set forth the General Assembly.54 — It is abundantly clear that the majority’s holding this case i.e., that physicians have a common law duty to inform their patients *19 — of the material risks of a proposed treatment directly contrary to the Supreme Court’s statement in Albany Urol- Clinic ogy that there is no such common law duty. Indeed, major- ity makes no attempt reconcile its decision with plain language of the Supreme Instead, Court’s decision. the majority simply ignores such language, on apparently grounds that it is dicta.
In my opinion, when the Supreme Court has
clearly
unam-
biguously spoken
issue,
on an
this Court should
extremely
reluc-
I am authorized to Miller in this concur- join special Judge Judge Blackburn rence. November
Decided Arnold, III, Jones, Osteen, appel- & Linnie L. Darden Jones lant. Smith, Smith, for
Brannen, appellee. & David R. Searcy & COMPANY, INC. et al. v. CARROLL A D ASPHALT A00A1192. & MACON, INC. CARROLL OF Judge. Phipps, Macon, entered an Inc. Carroll & Carroll In September whereby D Asphalt Company with A & agreement purchase asset of its assets. essentially all A & D’s business and Carroll purchased whereby Carroll agreement D also entered a lease and A & Carroll Id. at 299 Hogan v. State, notes reasonable part obtaining physician care on of a the informed consent for providing treatment consists of information sufficient general give understanding proposed a reasonable procedure, medically acceptable procedures, alternative and the substantial and hazards inherent in the recognized by physicians which are other or similar same com- munity perform procedures. physician who A similar is not under a possible upon risks, elucidate all the but those of a seri- Expert See ous nature. also Fla. Statute 381.026. establish whether the commu- nity pertinent would make the under disclosures the same similar Compensation Fund, circumstances. 987, v. Fla. Ritz Patient’s S2d (Fla. 1983); Berrios, Thomas v. 348 S2d 1977). (Fla. statutory §HRS for the 10. Hawaii: 671-3 creates a medical tort ren- dering professional However, services without informed consent. apply Therefore, to dentists. a breach this statute does