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Legal Standards for Informed Consent

The core of the controversy over informed consent is the choice of a standard by which informed consent is judged. Physicians argue, correctly, that they have always talked to patients about proposed treatments. It is not talking to patients that they object to; it is the court's intrusion into what is said. Many states have sought to minimize this intrusion by adopting disclosure standards based on physician expectations: the community standard. Other states have adopted standards based on patient expectations: the reasonable-person standard.

Both the community standard and the reasonable-person standard are used for judging the information to be given to passive patients, who do not ask questions. If the patient does ask questions, the physician must answer these questions truthfully. More important, the answers must be sufficiently complete to convey the requested information accurately. The physician cannot hide behind the patient's inability to phrase a technical question properly. Under either standard, a patient who asks to be told all the risks of a procedure is entitled to more information than a patient who sits mutely. Failure to disclose a risk in reply to a direct question may constitute fraud, even if the appropriate standard for judging informed consent would not require that the risk be disclosed.

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