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Statutory Disclosure Standards

Certain states and the federal government mandate specific disclosures in certain situations. (For an example of a federal requirement, see Chapter 25.) Texas is a good example because it has the most detailed requirements. The Texas Medical Disclosure Panel, a statutory body consisting of physicians and lawyers, promulgates lists of procedures and the risks that a patient must be told about each procedure. In some cases, the panel mandates more disclosure than was usual in the community, and in others it has lowered the level of disclosure.

This law was passed to reduce the threat of informed consent litigation. It is difficult to determine if it has been effective because there was very little informed consent litigation in Texas before the law was passed. What it has done is make it very easy to sue physicians who do not comply with the statutory requirements. It has also reduced the effectiveness of informed consent as a risk management tool. Rather than using the consent process to ensure that the patient understands what is to be done, physicians simply have patients sign the promulgated forms.

The best risk management advice for physicians in states with statutory disclosure standards is to tell the patient everything a reasonable person would want to know and then be sure that the patient signs the appropriate statutory consent forms. Physicians should ask their attorney if their state has any statutory disclosure requirements. If so, these should always be complied with. They are not, however, a substitute for obtaining a full informed consent.

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