This guest post is by Todd Carter, Staff Writer for Michael J. Brennan’s Law Blog.
A reasonable person should know the possible risks in the treatment or surgical procedure in order to make a decision to give or withhold the consent to the treatment or surgical procedure. If the physician or healthcare provider is negligent in making the disclosure to the patient, the physician or healthcare provider may be liable for the injuries suffered by the patient. In Texas, the physicians or health care provider have a statutory duty under Tex. Civ. Prac. & Rem. Code § 74.101 to disclose the possible risks of the treatment or surgical procedure to the patients.
In a recent case, a chiropractor argued that the statutory duty codified under Tex. Civ. Prac. & Rem. Code § 74.101 is not applicable to chiropractors and hence he is not liable for the injury to an artery of the patient that resulted in a stroke while manipulating the patient’s neck. Even though the Texas Supreme Court agreed with the chiropractor that the statutory duty under Tex. Civ. Prac. & Rem. Code § 74.101 is not applicable to chiropractors, the Court held that the chiropractors are under a common-law disclosure standard to disclose the possible risks of the treatment to their patients and remanded the case to lower court to address further issues. (see Felton v. Lovett, 388 S.W.3d 656 (2012))
Under common law, the patients have a right to information sufficient to make an informed consent or to refuse the treatment. The dangers associated with medical procedures vary and therefore the nature and extent of disclosure depends upon the nature of medical procedure as well as the patient. The health care professionals are legally bound under common law to disclose the possible risks that would influence a reasonable person to make a decision whether to accept or reject the treatment. In medical procedures and treatments, there is always a chance of injury even if the procedure or treatment is properly done.
If a physician or healthcare professional suppresses any facts that are necessary to form the basis of an intelligent consent by the patient to the proposed treatment, the physician or healthcare professional violates his duty and subjects him to liability. He should not minimize the known dangers of a procedure or operation in order to induce the consent. A reasonable physician or healthcare professional should place the welfare of his patient above all else and this very fact places him in a position in which he sometimes must choose between two alternative courses of action. He may explain every risk to the patient which may well alarm the patient to be prepared for the treatment; it may also result in increasing the risks by reason of physiological results of the apprehension. A reasonable physician or healthcare professional must be able to make an appropriate decision.