Legal Alert: Expert Testimony No Longer Necessary for Proof of Informed Consent
The Seminal Case: Culbertson v. Mernitz
In 1992, the Indiana Supreme Court addressed whether a “reasonably prudent physician” or “reasonably prudent patient” standard is controlling in medical malpractice cases concerning informed consent, and whether expert testimony is required to prove informed consent. The Culbertson majority adopted the “reasonably prudent physician” standard stating that except where deviation from the standard of care is commonly known, expert testimony is necessary to prove informed consent. However, the dissent advocated for a “reasonably prudent patient” standard, which requires medical expertise to determine the risks of a procedure but not to determine the materiality of a particular risk to a patient.
The Aftermath of Culbertson: Weinberg v. Bess and Spar v. Cha
In the 1999 Weinberg case, the Indiana Supreme Court appeared to indicate a shift from the Culbertson standard, holding that a physician must disclose the facts and risks of a treatment which a reasonably prudent physician would be expected to disclose and which a reasonable person would want to know.
In the 2009 Spar case, the Indiana Supreme Court clarified its earlier position in Weinberg, citing Weinberg as a correct statement of the law on the issue of informed consent and adopted a five (5) element framework for informed consent.
The Most Recent Development: Perez v. Hu
In 2017, the Indiana Court of Appeals stated the Indiana Supreme Court had drifted from Culbertson and held that while expert testimony would be required to identify the risks of proposed treatment or non-treatment, the fact finder needs no expert guidance to determine the materiality of a particular risk to a patient. Applying this standard, it would be up to the jury to decide, based on their collective judgement, whether a reasonable person would have chosen a different course of medical treatment had they been adequately informed.
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