 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wyant v. Myuers11/28/2003
blished standard of care and actionable as malpractice.” In Mayor, the court remanded the case for a jury trial on the question of informed consent, because the evidence was sufficient to create a factual question whether the defendant doctor had informed the plaintiff before surgery of known dangers from a spinal anesthetic. Id. at 235.
In Getchell v. Mansfield, 260 Or 174, 180-83, 489 P2d 953 (1971), the court clarified that the physician’s responsibility to warn of risks extends only to material risks with serious consequences, not to all possible risks. Additionally, the court required the introduction of expert testimony to establish the materiality of the risk in question, but relieved plaintiffs of any obligation to introduce expert testimony that it is the custom of physicians in the locality to give warnings in similar cases. Id. at 183.
In 1977, the legislature enacted ORS 677.097 to specify the steps that a physician must take to obtain the informed consent of a patient to a medical procedure or method of treatment. Or Laws 1977, ch 657, § 1. The enactment of ORS 677.097 “codified the essence of the Getchell decision * * * with some modification.” Tiedemann v. Radiation Therapy Consultants, 299 Or 238, 247, 701 P2d 440 (1985). ORS 677.097 currently provides: “(1) In order to obtain the informed consent of a patient, a physician or podiatric physician and surgeon shall explain the following:
“(a) In general terms the procedure or treatment to be undertaken;
“(b) That there may be alternative procedures or methods of treatment, if any; and
“(c) That there are risks, if any, to the procedure or treatment.
“(2) After giving the explanation specified in subsection (1) of this section, the physician or podiatric physician and surgeon shall ask the patient if the patient wants a more detailed explanation. If the patient requests further explanation, the physician or podiatric physician and surgeon shall disclose in substantial detail the procedure, the viable alternatives and the material risks unless to do so would be materially detrimental to the patient. In determining that further explanation would be materially detrimental the physician or podiatric physician and surgeon shall give due consideration to the standards of practice of reasonable medical or podiatric practitioners in the same or a similar community under the same or similar circumstances.”
Failure to comply with the foregoing statutory requirements can serve as a factual predicate for an action for malpractice. See Arena v. Gingrich, 305 Or 1, 7, 748 P2d 547 (1988) (court remanded for trial negligence claim that physician violated ORS 677.097 by failing to obtain patient’s informed consent to surgery).
PROPOSED CHANGES TO ORS 677.097
The proposed measure in this case would make several additions to ORS 677.097. Among other additions, subsection (3) A of the proposed measure would require a “health care provider” or a “referring health care provider” to give an expanded notification to a female who seeks one particular medical procedure: an abortion. The expanded notification obligation would have both substantive and procedural components, which we outline below.
The proposed measure would require notification not only of the medical risks of the procedure, as under current law, but also of the probable gestational age of the unborn child and the medical risks to the female of carrying the unborn child to term. Subsection (3) A(2) of the proposed measure also would require a health care provider to provide the required information “in a conversation with the female in which the female may ask questions[,]” and wo
Page 1 2 3 4 5 6 7 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|