Negligent nondisclosure cases are typical negligence cases. There are four elements that must be shown:1

1. Duty: The duty is the requirement that a physician act as a minimally competent, similarly trained, reasonable physician in similar circumstances would act when disclosing information.
2. Breach of duty: Failure to meet the minimal standard of care.
3. Injury is the harm that befalls the patient.
4. A causal relationship between the breach and the harm is shown when the patient reasonably declares that he would have refused to undergo the procedure had he known the true nature of the risks.

If all four elements are proven, the physician is liable for the tort of negligent nondisclosure. The proof typically lies in the testimony of the plaintiff’s expert witness, who must present the following information:2

1. Define the duty: The details that constitute an appropriate informed consent discussion.
2. Identify the breach: The details that were wrongly omitted.
3. Clarify the harm: The injuries that were suffered.
4. Identify alternatives: The alternatives that a reasonable patient might have selected instead are defined. These may include a different procedure, a different physician or a different facility.

The plaintiff then adds that he or she, being a reasonable patient, would have refused to consent to the procedure.

References

1. Ey RM. “Cause of Action Against Physician for Failure to Obtain Patient’s Informed Consent,” 5 Causes of Action § 1 (Updated September 2010).
2. Miller-McGee v. Washington Hosp. Center, 920 A.2d 430, 440 (D.C. 2007).