What is considered as legitimate surgical malpractice and how can you prove it?

To prove negligent disclosure, a plaintiff has to prove the following:

(1) that the physician had a duty to know of the risk;

(2) that he or she had an obligation to disclose that risk;

(3) that the physician breached that duty;

(4) that harm resulted from the failure to disclose the risk; and

(5) damages.

The law varies from state to state but in most cases, it does not require a health care practitioner to disclose every imaginable surgical risk but rather risks of serious bodily harm or death which have a substantial probability of occurring.  K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995)  To satisfy this burden, a physician is under a duty to disclose information which a competent practitioner in good standing in the community would communicate to his or her patients under similar circumstances.