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Informed Consent-State of North Carolina

December 1, 2017

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Informed consent is the process by which a healthcare provider imparts to a patient a general understanding of the treatment or procedure to be undertaken, as well as the usual risks of the treatment, so that the patient can make an informed decision to accept or refuse such treatment.  Failure to obtain informed consent before initiating treatment may result in medical malpractice liability. 

The applicable North Carolina law regarding informed consent is stated in North Carolina General Statute § 90-21.13.  Pursuant to this statute, informed consent exists:

(1) when the actions of the healthcare provider in obtaining informed consent from the patient (or other person authorized to give consent) are in accordance with the standards of practice among members of the same healthcare profession with similar training and experience situated in the same or similar community; and

(2) a reasonable person, after receiving the information provided by the healthcare provider, “would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities;” or

(3) A reasonable person, under all surrounding circumstances, would have undergone such treatment if advised by the health care provider in accordance with subdivisions (1) and (2).

Even when not obtained, informed consent may be implied where a reasonable person in the patient’s situation would have consented to the treatment or procedure if advised by the healthcare provider as required under this statute. 

Informed consent need not be in writing, but a written consent that meets the above standards and is signed by the patient is presumed valid, and bars any lawsuit for lack of informed consent, except in cases where a patient can prove that the consent was obtained by fraud, deception, or intentional misrepresentation of a material fact. 

Although informed consent should be obtained from the patient himself if he has the necessary capacity, where a patient is comatose or otherwise lacking the capacity to make healthcare decisions, informed consent can be provided by those persons listed in N.C.G.S. § 90-21.13(c). 

If you have any questions about the process of informed consent, please contact your designated MagMutual Risk and Patient Safety Consultant or call the MagMutual Patient Safety Institute at 800-282-4882.

Author: Gray Wilson is a medical malpractice attorney with Nelson, Mullins, Riley & Scarborough, LLP, Winston-Salem, NC.

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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