§ 6852 — Informed consent

(a) No recovery of damages based upon a lack of informed consent shall be allowed in any action for medical negligence unless:

(1) The injury alleged involved a nonemergency treatment, procedure or surgery; and

(2) The injured party proved by a preponderance of evidence that the health-care provider did not supply information regarding such treatment, procedure or surgery to the extent customarily given to patients, or other persons authorized to give consent for patients by other licensed health-care providers in the same or similar field of medicine as the defendant.

(b) In any action for medical negligence, in addition to other defenses provided by law, it shall be a defense to any allegation that such health-care provider treated, examined or otherwise rendered professional care to an injured party without his or her informed consent that:

(1) A person of ordinary intelligence and awareness in a position similar to that of the injured party could reasonably be expected to appreciate and comprehend hazards inherent in such treatment;

(2) The injured party assured the health-care provider he or she would undergo the treatment regardless of the risk involved or that he or she did not want to be given the information or any part thereof to which he or she could otherwise be entitled; or

(3) It was reasonable for the health-care provider to limit the extent of his or her disclosures of the risks of the treatment, procedure or surgery to the injured party because further disclosure could be expected to affect, adversely and substantially, the injured party’s condition, or the outcome of the treatment, procedure or surgery.

Legislative History

60 Del. Laws, c. 373, § 1 ; 70 Del. Laws, c. 186, § 1 ; 71 Del. Laws, c. 373, §§ 2, 3