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Informed Consent in Kentucky

January 19, 2018

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Informed consent is the process by which the treating healthcare provider discloses appropriate information to a competent patient so that the patient may make a voluntary choice to accept or refuse treatment.[1] Inherent in the doctrine is the belief that the patient alone has the ability to decide what happens to their body.

The Kentucky informed consent statute states:

In any action brought for treating, examining, or operating on a claimant wherein the claimant's informed consent is an element, the claimant's informed consent shall be deemed to have been given where:

(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and

(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures;

(3) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent.[2)

Thus, the healthcare provider’s duty to provide informed consent requires the provider to disclose to the patient the risks in accordance with accepted standards of medical practice, among members of the profession with similar training and experience, stated in a way that would provide a reasonable individual with a general understanding of the substantial risks and hazards inherent in the treatment and/or procedure.[3]

In most cases, a healthcare provider has satisfied informed consent requirements when the provider has documented and discussed with a patient that the risks are, (1) bleeding, (2) infection, (3) injury to adjacent organs, and (4) death, in addition to alternative therapies. Opting out or doing nothing is always an alternative to therapy. Furthermore, some treatments and/or procedures have particularized risks in addition to the risks listed above. Any particularized risks should be discussed with the patient and documented as well.

Kentucky courts have repeatedly recognized that valid consent to medical treatment is to be gleaned from evidence of the circumstances and discussions surrounding the consent process.[31 Kentucky's highest court has explicitly held that consent to an operation need not be express, but may be implied from the surrounding facts and circumstances.[41 Thus, under Kentucky jurisprudence, there is no overt requirement that consent be in writing. Additionally, if a patient wishes to negate informed consent in a lawsuit, Kentucky law requires that they do so by expert testimony.[5]

Author: Scott Whonsetler is a medical malpractice attorney with the firm of Whonsetler and Johnson, Louisville, KY

Disclaimer This Advisory is not a comprehensive analysis of every treatment or procedure that may be addressed in the Kentucky Informed Consent law .Please consult with your personal attorney or the Kentucky State Medical Board, if you have specific questions.

[1]     Jessica De Bord, Informed Consent, U. Washington Sch. Med.,

http://depts.washington.edu/bioethx/topics/consent.html [1] (last updated Mar. 7, 2014).

[2]     KRS 304.40-320

[3]     Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015).

[4]     Kovacs v. Freeman, 957 S.W.2d 251, 255 (Ky. 1997).

[5]     Haywood v. Allen, 406 S.W.2d 721, 722 (Ky. 1966)

[6]     Hawkins v. Rosenbloom, 17 S.W.3d 116, 119 (Ky. Ct. App. 1999).

Updated January 2018

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.

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