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Consent and Informed Consent

Brief - Physicians do not have a duty to disclose illicit drug use to their patients - Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (Ga., Mar 06, 2000)

This is a fascinating case from the Georgia Supreme Court.  Plaintiff sought treatment for potential penile cancer. Defendant surgically removed a lump from the plaintiff's penis, which turned out to not be cancerous.  Plaintiff subsequently developed severe complications secondary to the surgery and sued for negligent diagnosis and treatment, battery, and fraudulent concealment or misrepresentation.  The battery, and fraud claims were predicated on plaintiff's discovery that defendant was a cocaine addict and that his judgment and professional skills were impaired by this addiction.  The trial judge dismissed the battery claim and the jury found for the defendant on the negligence claim.  However, the jury found for the plaintiff on the fraudulent concealment or misrepresentation claim, and the defendant appealed to the trial judge to set aside the verdict.  The judge grant JNOV for the defendant and the plaintiff appealed.  The appeals court reversed, allowing the plaintiff's claim for fraudulent concealment or misrepresentation and the defendant appealed.

While the majority opinion is sympathetic to plaintiff's position, its opinion is driven by its view of Georgia's unusual informed consent laws.  Until 1988, the Georgia courts did not recognize any doctrine of informed consent and thus physicians had no duty to disclose the risks of medical treatments.  In 1988 the Georgia legislature adopted a statutory Informed Consent Doctrine, which listed six categories of information that physicians were required to disclose to patients:

"(1) the patient's diagnosis necessitating the procedure; (2) the nature and purpose of the procedure; (3) the generally recognized and accepted material risks of infection, allergic reaction, disfigurement, brain or heart damage, etc. associated with the procedure; (4) the likelihood of the procedure's success; (5) the practical, accepted and recognized alternatives to the procedure; and (6) the patient's prognosis if the procedure is rejected."

The court found that what it termed general life conditions (cocaine addiction) that might affect medical competence were not on this list.  It further concluded that since Georgia's view of its common law was that in the absence of the statute, there was no duty to disclose anything, plaintiff could not base his claim on a failure to inform about cocaine use, irrespective of how that claim was couched.  The court affirmed the dismissal of the battery claim and ruled that plaintiff's fraud and misrepresentation claim should also be dismissed.   Ironically, the dissent may be of more general applicability because it rejected the narrow reading of the Georgia Informed Consent Doctrine and saw it instead as a list of things that should be told patients, not a limitation on what the patient has a right to know.  The dissent also rejected the characterization of cocaine addiction as a general life condition, finding that plaintiff had a right to have the jury determine the materiality of a behavior that is specifically prohibited by statute and is grounds for revocation of medical license.  The opinion contains a useful discussion of the issues and citations that will be valuable for readers outside of Georgia.

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