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The Uncertainty of the Community Standard

From a physician's perspective, the community standard provides little guidance in deciding what to tell patients. Physicians do not routinely discuss what they tell patients; medical journals do not publish articles on the proper disclosure for specific treatments; professional societies do not promulgate standards for disclosure because they fear antitrust litigation by physicians who are offering unorthodox treatments. A physician who wants to comply with the community standard has a difficult task in establishing what disclosure the standard would mandate for a given treatment.

This uncertainty arises because the community standard is not rooted in medical practice. It is a legal rule that determines how a jury is to decide if a specific patient was given enough information. The community standard is a defensive standard. The jury is not allowed to judge the physician's disclosure on a commonsense basis. The patient must find a physician to testify that certain disclosures should have been made. It is usually possible to find a physician to testify that whatever complication the patient suffered is part of the community standard for disclosure. This leaves a physician who has not disclosed the risk, based on a good-faith belief that the disclosure was not required, without an objective standard to argue to the jury.

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