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Reasonable-Person Standard

The courts and legislatures of several states have abandoned the community standard in favor of the more patient-oriented reasonable-person standard. The reasonable-person standard requires that a patient be told all of the material risks that would influence a reasonable person in determining whether to consent to the treatment. While hardly less ambiguous than the community standard, the reasonable-person standard has the advantage of encouraging physicians to discuss the proposed treatment with the patient more fully.

This new standard is not accepted by all states, but it is spreading. As courts in community standard states grapple with the perceived abuses of corporate medical practice, it is expected that they will move to the reasonable-person standard. Even in states that retain the community standard, a plaintiff's expert will present a hybrid standard to the jury based on the increased information given patients in states that have adopted the reasonable-person standard. Since the standards for specialty practice are national, physicians in reasonable-person jurisdictions will set the minimum disclosure, which will then have to be followed in the community standard states. By this incremental increasing of the standards for disclosure, the reasonable-person standard will become the de facto national standard.

When a standard is based on reasonableness, it means that jurors are allowed to use their common sense to determine what should have been done. In an informed consent case, the jurors decide what they would have wanted to be told about the proposed treatment. This weights the standard toward disclosure, since each juror is more likely to add to the list of necessary information than to argue that another's concerns are unreasonable. The reasonable-person standard does not always work to the patient's benefit. If the patient's personal demands for information seem unreasonable, the jurors may reject the claim even if the disputed information is usually given to patients.

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