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. Although 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.