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Understanding the Doctrine of Informed Consent

By Kim M. Ruder and Samatha T. Lemery

As litigators and advocates for physician clients facing medical malpractice claims, as well as attorneys who often counsel and advise physician-based medical practices on the “best practices” to invoke in order to avoid becoming a defendant in a medical malpractice suit, it is important that we help our clients to understand the duties they owe their patients. These duties go beyond diagnosing medical conditions and prescribing proper treatments. One such duty, the parameters of which continue to evolve and become more refined ' and perhaps more confusing ' through litigation, is the duty to facilitate the patient's informed consent.

The duty of eliciting informed consent, in its most basic form, is the duty inherent in the patient-physician relationship to properly and fully advise a patient of the risks associated with a particular procedure. With this information, the patient can decide what course of treatment is best for him or her. In order to be a proper counselor, advisor and defense attorney, lawyers should fully understand the intricacies of their own jurisdictions' informed consent laws, which can vary widely from state to state.

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