Section 10.5 Standards and Duty

• Library: Trusts and Powers 2013 Supp

D. (§10.5) Standards and Duty

There are two standards used for determining negligence in informed consent actions. The reasonable patient standard, also referred to as the materiality rule or new rule, focuses on the informational needs of the average, reasonable patient. This standard requires disclosing all information relevant to a meaningful decision process. “Materiality” has been defined as “when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or clutter of risks in deciding whether or not to forego the proposed therapy.” Randall v. United States,
859 F. Supp. 22, 31 (D.D.C. 1994). Thus, the patient’s right of self-decision is the measure of the physician’s duty to reveal.

The professional standard, or old rule, defines the duty to disclose as limited to those disclosures that a reasonable health care provider would make under the same or similar circumstances. The landmark case establishing this standard states the general philosophy for the disclosure obligation:

The duty of the physician to disclose, however, is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to...