• 2006 - Physician's Duty to Disclose (Informed Consent)
  • C-14.20
    • Informed Consent
    • Medical Negligence
    • Tort Liability
    • Tort Liability

  • A physician has a duty to disclose to a patient sufficient information to permit a patient to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure. This is called informed consent.

     

    In providing informed consent for a medical procedure, a physician should disclose the diagnosis, the general nature of the contemplated procedure, the material risks involved in the procedure, the probability of success associated with the procedure, the prognosis if the procedure is not carried out, and the existence and risks of any alternatives to the procedure.

     

    A physician is required to disclose material risks, not all risks. In determining whether risks are material, a physician is not required to inform a patient of risks that are so remote as to be negligible, even when the consequences may be severe. The physician is not required to inform the patient of a very minor consequence even though the probability is high. And, there is no duty to disclose risks that are common knowledge as inherent in the treatment. A risk is material if a reasonable patient would consider it in deciding on medical treatment.

     

    A duty to disclose can arise only if the physician knew or should have known of the risk to be disclosed.

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    • 12.1-08-06
    • 12.1-08-07
    • Buzzell v. Libi, 340 NW2d 36 (ND 1983)
    • Flatt v. Kantak, 2004 ND 173, 687 NW2d 208
    • Jaskoviak v. Gruver, 2002 ND 1, 638 NW2d 1
    • Kershaw v. Reichert, 445 NW2d 16 (ND 1989)
    • Koapke v. Herfendal, 2003 ND 64, 660 NW2d 206 (den
    • Winkjer v. Herr, 277 NW2d 579 (ND 1979)
  • Notes: A causation instruction will also need to be given. See Long v. Jaszazak, 2004 ND 194, ¶¶ 19-20, 688 NW2d 173; Kaopke, 2003 ND 64, ¶ 14, 660 NW2d at 211-12; Buzzell, 340 NW2d at 41, n. 3. Expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives. Expert testimony is particularly necessary when such information is outside the common knowledge of the general public. See Flatt, 2004 ND 173, ¶ 7, 687 NW2d at 212 and Winkjer, 277 NW2d at 588.