Public Health Law Map - Beta 5 - Medical and Public Health Law Site

would not require that the risk be disclosed.
3. The Uncertainty of the Community Standard
From a physician’s perspective, the community standard provides little guidance in
deciding what to tell patients. Physicians do not routinely discuss what they tell
patients; medical journals do not publish articles on the proper disclosure for specific
treatments; professional societies do not promulgate standards for disclosure because
they fear antitrust litigation by physicians who are offering unorthodox treatments. A
physician who wants to comply with the community standard has a difficult task in
establishing what disclosure the standard would mandate for a given treatment.
This uncertainty arises because the community standard is not rooted in medical
practice. It is a legal rule that determines how a jury is to decide if a specific patient
was given enough information. The community standard is a defensive standard. The
jury is not allowed to judge the physician’s disclosure on a common sense basis. The
patient must find a physician to testify that certain disclosures should have been
made. It is usually possible to find a physician to testify that whatever complication
the patient suffered is part of the community standard for disclosure. This leaves a
physician who has not disclosed the risk, based on a good-faith belief that the
disclosure was not required, without an objective standard to argue to the jury.
a) Reasonable-Person Standard
The courts and legislatures of several states have abandoned the community
standard in favor of the more patient-oriented reasonable-person standard. The
reasonable- person standard requires that a patient be told all of the material risks
that would influence a reasonable person in determining whether to consent to the
treatment. Although hardly less ambiguous than the community standard, the
reasonable-person standard has the advantage of encouraging physicians to discuss
the proposed treatment with the patient more fully.
This new standard is not accepted by all states, but it is spreading. As courts in
community standard states grapple with the perceived abuses of corporate medical
practice, it is expected that they will move to the reasonable-person standard. Even
in states that retain the community standard, a plaintiff’s expert will present a
hybrid standard to the jury based on the increased information given patients in
states that have adopted the reasonable-person standard. Since the standards for
specialty practice are national, physicians in reasonable- person jurisdictions will
set the minimum disclosure, which will then have to be followed in the
community-standard states. By this incremental increasing of the standards for
disclosure, the reasonable- person standard will become the de facto national
standard.
When a standard is based on reasonableness, it means that jurors are allowed to use
their common sense to determine what should have been done. In an informed
consent case, the jurors decide what they would have wanted to be told about
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