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New Case Law on Informed Consent

Jun 13, 2016 - News by

The Oklahoma Supreme Court recently issued a new opinion on the doctrine of informed consent in medical negligence cases.  See Allen v. Harrison, 2016 OK 44, 2016 WL 1567600 (mandate not yet issued at the time of this publication).  In that case, the plaintiff swallowed a nail, and the ER physician recommended that he “eat fiber and let the nail pass”; the physician allegedly failed to disclose the alternative medical options, which would have included endoscopic and surgical removal of the ingested nail.   The underlying medical negligence claim was tried to a jury, and a defense verdict was rendered by the jury. However, the plaintiff appealed the trial court’s pre-trial partial summary judgment ruling on the informed consent claim.  The Supreme Court agreed that summary judgment was inappropriate on the informed consent claim, and remanded for a new trial.  In particular, the Court rejected the ER physician’s argument that he had no duty to advise of medical options that were outside the scope of his practice.  Id. at ¶13 (“[P]hysicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice.”).  Rather, the Court implied that the ER physician had a duty to make this disclosure even if it meant a “consultation with another medical professional to facilitate the disclosure.” The case contains a number of holdings regarding informed consent.  The conclusion summarizes the holding:  “[I]nformed consent applies equally to invasive as well as noninvasive medical treatments and treatment […]

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