What is the test for informed consent in a medical malpractice case?

California, United States of America


The following excerpt is from Traxler v. Varady, 12 Cal.App.4th 1321, 16 Cal.Rptr.2d 297 (Cal. App. 1993):

Appellant next contends that the court erred in refusing her instruction on "informed consent." Appellant requested the following instruction: "A physician rendering a diagnosis has a duty to inform the patient that other members of the medical profession might render a different diagnosis based on a contrary recognized school of thought." This instruction is based on dicta in Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 232, 166 Cal.Rptr. 443, to the effect that, had the plaintiff requested an appropriate instruction, the pathologist could have been found negligent for failure to inform the patient that her ovarian teratoma contained immature tissue and that some pathologists believed such tissue to be malignant. (Id. at p. 231, 166 Cal.Rptr. 443.) The factual predicate to giving such an instruction, however, must be evidence that the defendant was aware of conflicting "schools of thought" with respect to diagnosis or, in this case, treatment.

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