Submitted by New Jersey Civil Lawyer, Jeffrey Hark
Whenever a procedure is performed on a patient by a doctor it is necessary that the patient provide informed consent. This means that the patient understands what is about to happen and the risks associated with the procedure. Informed consent is measured by the “prudent patient” standard adopted in the 1988 case Largey v. Rotham. This means that if a prudent or reasonably responsible patient would have understood the procedure and associated risks at the time of consent then the consent was informed. This is based on the perspective of a laymen patient not the physician him/herself and so the patient does not need to understand the intricacies of the procedure in most cases in order for their consent to be informed.
Criteria to Establish Professional Negligence
In order to established negligence as a result of lack of informed consent four elements must be proven:
- doctor failed to disclose risk information a prudent patient needs
- undisclosed risk occurred and hurt patient
- a reasonable person who knew the undisclosed risk would not have consented to procedure
- procedure was a proximate (direct) cause of patient’s injuries
Professional Negligence and Informed Consent
In Lynch v. Pressman, decided by the Appellate Division on March 19, 2015. In this case a physician caused significant damage to a nerve while performing a carpel tunnel release surgery. In a deposition the expert for the plaintiff stated that he believed the physician was under-qualified to perform the surgery due to lack of experience which led to increased risk. But as mentioned previously, informed consent is measured from the patient perspective, physician experience is not relevant. Only facts and risks relating to the procedure itself matter for the patient’s ability to make a risk assessment. In fact New Jersey cases law does not suggest anywhere that a doctor has a duty to disclose their experience in a particular procedure. The testimony was barred by the trial judge and affirmed on appeal. The appeal included other issues as well but they’re not relevant to this blog.