2.8 Informed Consent

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.8 INFORMED CONSENT

2.801 Overview. The doctrine of informed consent requires a physician to disclose to a patient the alternatives to and risks of a particular treatment. This enables the patient to intelligently decide whether to undergo the proposed treatment. Informed consent has developed out of strong judicial deference toward individual autonomy, reflecting the belief that an individual has the right to be free from nonconsensual interference with his or her person. Justice Cardozo articulated this principle: "Every human being of adult years and sound mind has the right to determine what shall be done with his own body." ¹³⁷

In Virginia, when a health care provider fails to fully inform the patient of the risks associated with a particular surgery, the action is considered

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to be one of negligence for failing to adhere to the proper standard of care, rather than one of battery. ¹³⁸ As in any other action based on negligence, the plaintiff must establish (i) the existence of a duty; (ii) the breach of that duty; (iii) the proximate cause of the breach; and (iv) the damages from the breach.

2.802 Disclosure of Risks. The Virginia Supreme Court has held that a physician must make those disclosures that a reasonable medical practitioner would make under the same or similar circumstances. ¹³⁹ This ruling is often referred to as the "objective test." The physician owes a duty to the patient to make reasonable disclosure of all significant facts under the circumstances of the situation. The court expressly rejected the "subjective test" or "materiality" rule, which requires the physician to disclose information that a reasonable person in the patient's position would consider material in deciding whether to undergo the proposed therapy. ¹⁴⁰ In other words, the Supreme Court of Virginia has said that the focus is on the reasonable expectations of the medical community and not those of the plaintiff. The plaintiff must prove, with qualified medical experts, whether and to what extent a physician should disclose information to a patient. ¹⁴¹

2.803 Causation. A physician's failure to disclose information when legally required to do so does not automatically open the physician to charges of actionable negligence. The plaintiff must also show that the treatment or risk in question caused the injury and that "but for" this failure to disclose, the plaintiff would not have been injured.

Courts generally have applied either a "subjective" test (requiring the plaintiff to prove that he or she would not have consented to the treatment) or an "objective" test (requiring the plaintiff to prove that a reasonably prudent person in the plaintiff's situation would not have consented to the procedure had he or she known the risks). ¹⁴² The vast majority of the courts, including Virginia federal courts, have chosen the objective test.

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There is no Virginia Supreme Court decision specifically outlining the appropriate test for proving the causal connection between the failure to disclose and the resulting damages. However, in Rizzo v. Schiller, ¹⁴³ the court held that the plaintiff had met her burden on causation by presenting evidence that if she had received full disclosure, she would have acted differently, and that difference would have avoided the injury. Although the court in Rizzo did not announce the...