§ 2805-D — Limitation of medical, dental or podiatric malpractice action based on lack of informed consent

New York § 2805-D

• Jurisdiction: New York
• Law PBH: Public Health
• Art. 28: Hospitals

Text

§ 2805-d. Limitation of medical, dental or podiatric malpractice\naction based on lack of informed consent. 1. Lack of informed consent\nmeans the failure of the person providing the professional treatment or\ndiagnosis to disclose to the patient such alternatives thereto and the\nreasonably foreseeable risks and benefits involved as a reasonable\nmedical, dental or podiatric practitioner under similar circumstances\nwould have disclosed, in a manner permitting the patient to make a\nknowledgeable evaluation.\n 2. The right of action to recover for medical, dental or podiatric\nmalpractice based on a lack of informed consent is limited to those\ncases involving either (a) non-emergency treatment, procedure or\nsurgery, or (b) a diagnostic procedure which involved invasion or\ndisruption of the integrity of the body.\n 3. For a cause of action therefor it must also be established that a\nreasonably prudent person in the patient's position would not have\nundergone the treatment or diagnosis if he had been fully informed and\nthat the lack of informed consent is a proximate cause of the injury or\ncondition for which recovery is sought.\n 4. It shall be a defense to any action for medical, dental or\npodiatric malpractice based upon an alleged failure to obtain such an\ninformed consent that:\n (a) the risk not disclosed is too commonly known to warrant\ndisclosure; or\n (b) the patient assured the medical, dental or podiatric practitioner\nhe would undergo the treatment, procedure or diagnosis regardless of the\nrisk involved, or the patient assured the medical, dental or podiatric\npractitioner that he did not want to be informed of the matters to which\nhe would be entitled to be informed; or\n (c) consent by or on behalf of the patient was not reasonably\npossible; or\n (d) the medical, dental or podiatric practitioner, after considering\nall of the attendant facts and circumstances, used reasonable discretion\nas to the manner and extent to which such alternatives or risks were\ndisclosed to the patient because he reasonably believed that the manner\nand extent of such disclosure could reasonably be expected to adversely\nand substantially affect the patient's condition.\n