E. (§10.6) Elements
The information provided to the patient for informed decision-making must be sufficient for the patient to be knowledgeable about what is being proposed within the patient’s personal level of understanding. It is not required that every possible alternative or all risks in detail be disclosed. Wilkerson v. Mid-Am. Cardiology, 908 S.W.2d 691, 698 (Mo. App. W.D. 1995). The amount of information given to the patient will depend on the patient’s level of education, understanding, and interest. “A mini-course in medical science is not required; the patient is concerned with the risk of death or bodily harm, and problems of recuperation.” Cobbs v. Grant, 502 P.2d 1, 10 (Cal. 1972). Generally, the elements for informed consent are the:
· nature and purpose of the proposed procedure or treatment;
· expected outcome and likelihood of success;
· material risks and their likelihood of occurrence;
· alternatives and supporting information regarding those alternatives; and
· effect of no treatment or procedure, including the prognosis and the material risks associated with no treatment.
The scope of what constitutes informed consent was discussed in Roberson v. Menorah Medical Center, 588 S.W.2d 134 (Mo. App. W.D. 1979). The court reasoned:
The presentation to the patient of risks involved in prospective surgery cannot but call for some very nice judgments. On the one hand the patient is entitled to such information as he needs to make an intelligent decision and to give an informed intelligent consent. And yet the patient may have his apprehensions unnecessarily and unduly heightened if risks are unwisely presented, leading him to an imprudent choice. Risks must be placed in perspective. The one dealing with the patient at this point must have knowledge of the patient—his temperament, his intelligence, his mental condition and his physical condition. He must also have a knowledge of the surgery itself—its risks, whether imminent or remote, and whether it is pressing, deferrable or optional. He must know the availability of conservative methods of treatment, if any, and their promises for success as compared to the surgery. All these factors must be placed in the equation.
Id. at 137.
In making an informed decision, the patient needs to be in a position to balance the potential benefits with the potential risks. “The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone.” Cobbs, 502 P.2d at 10.
The failure to disclose material risks is the most frequent basis for lack of informed consent. Whether a risk is “material” is determined on a case-by-case basis. The significant factors have been the frequency or severity of the risk or effect on physical appearance or sexual or reproductive functioning. Eichelberger v. Barnes Hosp., 655 S.W.2d 699, 705 (Mo. App. E.D. 1983). The Iowa Supreme Court, in Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d 355 (Iowa 1987), held: “Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is
his patient’s position, would attach to the disclosed risk or risks
in deciding whether to submit . . . to...
