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Negligent nondisclosure cases are characteristic negligence cases. There are four elements that need to be demonstrated:1
- Duty: The duty refers to the requirement that a physician act as a minimally competent, similarly trained, reasonable physician in similar situation would act while disclosing information.
- Breach of duty: Failure to meet the minimal standard of care.
- Injury:Harm that happens to the patient.
- A causal link between breach and harm is shown when the patient declares that he would not have undergone the procedure if he knew the true nature of the risks.
If all the aforementioned elements are proven, the physician is liable for the tort of negligent nondisclosure. The proof lies in the testimony of the plaintiff’s expert witness, who must present the following information:2
- Define the duty: The details that make an appropriate informed consent discussion.
- Identify the breach: The details that were wrongly omitted.
- Clarify the harm: The injuries suffered.
- Identify alternatives: The alternatives that a reasonable patient might have selected instead;these may include a different procedure, a different physician or a different facility.
The plaintiff then mentions that being a reasonable patient, he would have not have given consent for the procedure.
- Ey RM. “Cause of Action Against Physician for Failure to Obtain Patient’s Informed Consent,” 5 Causes of Action § 1 (Updated September 2010).
- Miller-McGee v. Washington Hosp. Center, 920 A.2d 430, 440 (D.C. 2007).