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What is considered as legitimate surgical malpractice and how can you prove it?
What constitutes negligent non-disclosure in surgical malpractice actions?
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Answers (1)
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.
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Posted by Yara Zakharia on 21 Jan 2010
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