Chapter 3.C.2 (2.B.2) The Competing Disclosure Standards

Notes: Competing Disclosure Standards

New note 8.5. Informed Consent by Common Law or Statute.

As indicated in the previous notes and cases, informed consent has been developed by judicial decisions and legislative action. Legislative schemes sometimes have holes or areas where informed consent principles do not apply. In Blotner v. Doreika, 285 Ga. 481 (2009), the plaintiff Doreika claimed to suffer serious injuries as a result of a neck adjustment performed by his chiropractor. Doreika claimed that Blotner failed to inform him of the risks of the procedure or to advise him of alternate treatments. The court in Blotner considered whether the law relating to informed consent in Georgia was entirely statutory, or partly common law-based. If informed consent requirements were entirely statutory, Blotner would not be liable, as chiropractic adjustments did not qualify as “medical procedures” for the purposes of the statute. However, if there was, as Doreika argued, a common law component to Georgia informed consent law, then it was possible that Blotner breached his obligations to Doreika. The Georgia Supreme Court found that there was no common law duty of informed consent in Georgia and that failures to disclose were not actionable in fraud or professional malpractice. 285 Ga. 481 (2009).

Note 9. Free Speech and Informed Consent.

South Dakota’s informed consent law for abortions has produced a number of judicial decisions. S.D. Codified Laws § 34-23A-10.1. The law requires a number of disclosures, including “[t]hat the abortion will terminate the life of a whole, separate, unique, living human being” and “[t]hat the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota.” Id. The District court entered a preliminary injunction that was eventually overturned by the Court of Appeals for the Eight Circuit, sitting en banc. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (2008).See Zita Lazzarini, South Dakota’s Abortion Script – Threatening the Physician-Patient Relationship, 359 New Eng. J. Med. 2189-2191 (2008).The appeals court found that the plaintiff was unlikely to succeed on the merits of its claim that the informed consent statute violated physicians’ First Amendment rights. The District Court subsequently upheld many of the disclosure requirements. Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 650 F.Supp.2d 972 (2009).