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usual in the community, and in others it has lowered the level of disclosure.
This law was passed to reduce the threat of informed consent litigation. It is
difficult to determine if it has been effective because there was very little informed
consent litigation in Texas before the law was passed. What it has done is make it
easier to sue physicians who do not comply with the statutory requirements. It has
also reduced the effectiveness of informed consent as a risk management tool.
Rather than using the consent process to ensure that the patient understands what is
to be done, physicians simply have patients sign the promulgated forms.
The best risk management advice for physicians in states with statutory disclosure
standards is to tell the patient everything a reasonable person would want to know
and then be sure that the patient signs the appropriate statutory consent forms.
Physicians should ask their attorney if their state has any statutory disclosure
requirements. If so, these should always be complied with. They are not, however, a
substitute for obtaining a full informed consent.
d) Fraud
Fraud arises when a physician intentionally misleads a patient about the risks and
benefits of a treatment. It becomes a serious legal (and criminal) issue when a
patient is induced to accept substandard care by forgoing beneficial treatment or
submitting to an unorthodox treatment. Concerns about fraud often arise when a
physician begins to specialize in an unorthodox treatment. The most common
examples are weight loss clinics that employ unusual and unapproved regimens,
such as giving patients human chorionic gonadotrophin injections or pesticide pills.
A patient who can establish fraud may be entitled to punitive damages. Fraudulent
dealings may also subject the physician to criminal prosecution and the loss of his
or her license. One physician who was involved with a fraudulent weight loss clinic
was successfully prosecuted under the federal racketeering laws. [United States v.
Bachynsky, 934 F.2d 1349 (5th Cir. 1991).]
4. The Commonsense Approach
The doctrine of informed consent is a special case of the broader notion of
assumption of risk. Whenever a person knowingly engages in a risky activity, that
person consents to the risks of the activity. For this consent to be effective, (1) the
person must know the risks that are being assumed; (2) he or she must assume these
risks voluntarily; and (3) it must not be against public policy to assume the risks.
When a person makes a formal agreement (usually written) to accept the risks of an
activity, that agreement is called a waiver. A properly executed informed consent is a
waiver of the risks of medical treatment. To be effective, a waiver of the risks of
medical treatment must meet the same three criteria as other waivers. Informed
consent serves an additional, perhaps more important, purpose. In the process of
discussing the risks, benefits, and potential alternatives to a given treatment, the
physician and the patient have an opportunity to ensure that there are no
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