Practice of Medicine

Article

Informed Consent-State of South Carolina

By Barbara Chesley, RN, MS, JD

May 13, 2015

Informed consent is a conversation between the physician and the patient in determining whether a patient will undergo a diagnostic, therapeutic or surgical procedure.  The duty of obtaining informed consent belongs solely to the physician and should not be delegated to other health care professionals, including nurse practitioners.

In South Carolina, the doctrine of informed consent is established by case law, not statute. The controlling law on informed consent in South Carolina derives from the case of Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984), aff’d, 283 S.C. 64, 320 S.E2d 35 (1984), as well as a long line of cases that have followed, and requires that the treating physician be the individual who must obtain informed consent from his or her patient prior to performing a diagnostic, therapeutic, or surgical procedure.

The physician has a duty to disclose the following information to a patient, in the absence of an emergency:

1) the diagnosis or medical problem;

2) the general nature of the contemplated procedure/treatment;

3) the “material risks” involved in the procedure/treatment;

4) the probability of success associated with the procedure/treatment;

5) the prognosis if the procedure/treatment is not carried out; and

6) the existence of any alternatives to the proposed procedure/treatment.

The scope of a physician’s duty to inform a patient of “material risks” inherent in a proposed treatment or procedure is measured by those communications that a reasonable doctor would make under the same or similar circumstances.  Risks that have a high frequency or high severity would generally be included.

Documentation by the physician as part of the office record or progress notes that the above factors have been discussed with the patient is an important part of validating that the informed consent process occurred.  A hospital consent form, witnessed by a nurse, does not constitute informed consent.  It does not take the place of the physician’s informed consent process, and is merely a validation that the physician has already had the informed consent discussion with the patient. 

Author: Barbara Chesley, RN, MS, JD specializes in medical malpractice defense; she is a shareholder in the firm of Richardson, Plowden & Robinson Columbia, SC 

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

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.