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Medical Malpractice Informed Consent in North Carolina

One type of medical malpractice claim in North Carolina is based on the failure to obtain a patient’s informed consent to medical treatment. North Carolina statute contains an informed consent requirement in G.S. 90-21.13. It states, in part, that

(a) No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient or other person authorized to give consent for the patient where:

(1) The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; and

(2) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or

(3) A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.

(b) A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact. A consent that meets the foregoing standards, that is given by a patient, or other authorized person, who under all the surrounding circumstances has capacity to make and communicate health care decisions, is a valid consent.

The North Carolina Supreme Court has held that

[t]o meet this statutory standard, the health care provider must provide the patient with sufficient information about the proposed treatment and its attendant risks to conform to the customary practice of members of the same profession with similar training and experience situated in the same or similar communities. In addition, the health care provider must impart enough information to permit a reasonable person to gain a "general understanding" of both the treatment or procedure and the "usual and most frequent risks and hazards" associated with the treatment." The provider may not be held liable, however, if a reasonable person, under the surrounding circumstances, would have undergone the treatment or procedure had he or she been advised in accordance with G.S. 90-21.13(a)(1) and (2). (Foard v. Jarman 1990)

The Court stressed that “N.C.G.S. § 90-21.13(a) is in the disjunctive.” A health care provider does not need to comply with all three subsections. “[I]t is sufficient if the provider can demonstrate that no genuine issue of fact exists under subsections (1) and (2). In cases of purely elective surgery, including cosmetic or weight reduction surgery, it would be most difficult for a provider to prove that a reasonable person "would have undergone such treatment ..." upon receipt of proper advice.”

Under subsection (b) of the statute, a signed written consent is presumed valid only if it “meets the foregoing” standards contained in subsection (a). Therefore, the Court of Appeals held in Estrada v. Jaques (1984) that if a health care provider wishes to obtain summary judgment on the issue of a signed written consent, he must

show conclusively (1) the circumstances surrounding the consent, (2) the risks inherent in the procedures offered, (3) the standard in the community for obtaining consent and (4) that the standard was met under the circumstances.

Once a health care provider shows these elements, then the burden shifts to the plaintiff “to produce any evidence to rebut the validity of the consent.” However, in Clark v. Perry (1994), where a plaintiff sued a hospital for not obtaining the patient’s informed consent prior to performing a blood transfusion, the Court of Appeals noted that the plaintiff did not make out a prima facie case because she did not present expert testimony about the standard of care used by health care facilities in similar communities when obtaining a patient’s informed consent to a blood transfusion.

The North Carolina Court of Appeals looked at the application of the informed consent requirements to experimental treatments in Estrada. Because “[w]ith experimental procedures the "most frequent risks and hazards" will remain unknown until the procedure becomes established,” a health care provider cannot inform a patient as to the “most frequent risks and hazards” of the procedure. Instead, the court held that “where the health care provider offers an experimental procedure or treatment to a patient, the health care provider has a duty, in exercising reasonable care under the circumstances, to inform the patient of the experimental nature of the proposed procedure.”

Subsection (b) of the informed consent statute states that the a written consent which meets the standards set forth in subsection (a) is presumed valid, unless there is proof that such consent was “such consent was obtained by fraud, deception or misrepresentation of a material fact.” The Court of Appeals examined subsection (b) in the 2007 case, Handa v. Munn. In that case, the patient suffered severe damage to his vision after eye surgery. The patient testified that the doctor “told him that there was "hardly any risk involved" in the surgery, and that [the doctor] did not describe any of the risks.” The patient’s wife testified that “all [the doctor] said was that the surgery was a "very simple procedure" and that [the patient] “will be very happy with the results, and he can throw away his reading glasses."” Although the patient signed a written consent, he could not read at the time because his vision was blurry due to procedures which had taken place with the doctor prior to signing the consent form. The patient believed that he was simply consenting to the surgery, which he believed to be risk-free. The court held that there was “an issue of material fact regarding how the consent was obtained” under subsection (b) of the statute.

Finally, in Foard v. Jarman, the North Carolina Supreme Court noted that the “statute imposes no affirmative duty on the health care provider to discuss his or her experience.” In that case, the doctor told the patient he had performed the surgery several times. The patient assumed that he had performed the surgery several times in private practice, when in fact he had performed only one in private practice and the rest had occurred over the course of his internship and residency. In that case, the Court held that there was “no genuine issue regarding defendant's experience which bears on the issue of informed consent.” Because the statute did not impose an “affirmative duty on the health care provider to discuss his or her experience” the court refused to  “impose such a duty in a case where plaintiff's allegations are founded on her speculative and erroneous assumptions about the location of defendant's surgical experience.”

If you have been injured from medical negligence, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450 to discuss your options.

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