§ 1909. Limitation of medical malpractice action based on lack of informed consent
(a) For the purpose of this section, "lack of informed consent" means:
(1) the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation; or
(2) the failure to disclose the information required by subsection (d) of this section.
(b) The right of action to recover for medical malpractice based on a lack of informed consent shall not apply in the case of an emergency.
(c) It shall be a defense to any action for medical malpractice based upon an alleged failure to obtain such an informed consent that:
(1) the risk not disclosed is too commonly known to require disclosure and that the risk is not substantial;
(2) the patient assured the medical practitioner he or she would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient indicated to the medical practitioner that he or she did not want to be informed of the matters to which he or she would be entitled to be informed;
(3) consent by or on behalf of the patient was not reasonably possible; or
(4) a reasonably prudent person in the patient's position would have undergone the treatment or diagnosis if he or she had been fully informed.
(d) A patient shall be entitled to a reasonable answer to any specific question about foreseeable risks and benefits, and a medical practitioner shall not withhold any requested information.
(e) A motion for judgment for the defendant at the end of plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the allegation that he or she was not provided sufficient information as required by subdivision (a)(1) of this section. (Added 1975, No. 250 (Adj. Sess.), § 3, eff. April 7, 1976; 2009, No. 25, § 5.)
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