Certain states and the federal government mandate specific disclosures in
certain situations. 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 easier 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.