Disclosure of Certain Information to Persons Undergoing Certain Surgical or Diagnostic Procedures; Failure to Comply; Exceptions; Regulations Establishing Standards for Implementation

1. Law
2. Georgia Code
3. Health
4. Consent for Surgical or Medical Treatment
5. Disclosure of Certain Information to Persons Undergoing Certain Surgical or Diagnostic Procedures; Failure to Comply; Exceptions; Regulations Establishing Standards for Implementation

1. Except as otherwise provided in this Code section, any person who undergoes any surgical procedure under general anesthesia, spinal anesthesia, or major regional anesthesia or any person who undergoes an amniocentesis diagnostic procedure or a diagnostic procedure which involves the intravenous or intraductal injection of a contrast material must consent to such procedure and shall be informed in general terms of the following:
   1. A diagnosis of the patient's condition requiring such proposed surgical or diagnostic procedure;
   2. The nature and purpose of such proposed surgical or diagnostic procedure;
   3. The material risks generally recognized and accepted by reasonably prudent physicians of infection, allergic reaction, severe loss of blood, loss or loss of function of any limb or organ, paralysis or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac arrest, or death involved in such proposed surgical or diagnostic procedure which, if disclosed to a reasonably prudent person in the patient's position, could reasonably be expected to cause such prudent person to decline such proposed surgical or diagnostic procedure on the basis of the material risk of injury that could result from such proposed surgical or diagnostic procedure;
   4. The likelihood of success of such proposed surgical or diagnostic procedure;
   5. The practical alternatives to such proposed surgical or diagnostic procedure which are generally recognized and accepted by reasonably prudent physicians; and
   6. The prognosis of the patient's condition if such proposed surgical or diagnostic procedure is rejected.
2. 1. If a consent to a surgical or diagnostic procedure is required to be obtained under this Code section and such consent is not obtained in writing in accordance with the requirements of this Code section, then no presumption shall arise as to the validity of such consent.
   2. If a consent to a diagnostic or surgical procedure is required to be obtained under this Code section and such consent discloses in general terms the information required in subsection (a) of this Code section, is duly evidenced in writing, and is signed by the patient or other person or persons authorized to consent pursuant to the terms of this chapter, then such consent shall be rebuttably presumed to be a valid consent.
3. In situations where a consent to a surgical or diagnostic procedure is required under this Code section, it shall be the responsibility of the responsible physician to ensure that the information required by subsection (a) of this Code section is disclosed and that the consent provided for in this Code section is obtained. The information provided for in this Code section may be disclosed through the use of video tapes, audio tapes, pamphlets, booklets, or other means of communication or through conversations with nurses, physician assistants, trained counselors, patient educators, or other similar persons known by the responsible physician to be knowledgeable and capable of communicating such information; provided, however, that for the purposes of this Code section only, if any employee of a hospital or ambulatory surgical treatment center participates in any such conversations at the request of the responsible physician, such employee shall be considered for such purposes to be solely the agent of the responsible physician.
4. A failure to comply with the requirements of this Code section shall not constitute a separate cause of action but may give rise to an action for medical malpractice as defined in Code Section 9-3-70 and as governed by other provisions of this Code relating to such actions; and any such action shall be brought against the responsible physician or any hospital, ambulatory surgical treatment center, professional corporation, or partnership of which the responsible physician is an employee or partner and which is responsible for such physician's acts, or both, upon a showing:
   1. That the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure;
   2. That information concerning the injury suffered was not disclosed as required by this Code section; and
   3. That a reasonably prudent patient would have refused the surgical or diagnostic procedure or would have chosen a practical alternative to such proposed surgical or diagnostic procedure if such information had been disclosed;

      provided, however, that, as to an allegation of negligence for failure to comply with the requirements of this Code section, the expert's affidavit required by Code Section 9-11-9.1 shall set forth that the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure and that such injury was a material risk required to be disclosed under this Code section.

5. The disclosure of information and the consent provided for in this Code section shall not be required if:
   1. An emergency exists as defined in Code Section 31-9-3;
   2. The surgical or diagnostic procedure is generally recognized by reasonably prudent physicians to be a procedure which does not involve a material risk to the patient involved;
   3. A patient or other person or persons authorized to give consent pursuant to this chapter make a request in writing that the information provided for in this Code section not be disclosed;
   4. A prior consent, within 30 days of the surgical or diagnostic procedure, complying with the requirements of this Code section to the surgical or diagnostic procedure has been obtained as a part of a course of treatment for the patient's condition; provided, however, that if such consent is obtained in conjunction with the admission of the patient to a hospital for the performance of such procedure, the consent shall be valid for a period of 30 days from the date of admission or for the period of time the person is confined in the hospital for that purpose, whichever is greater; or
   5. The surgical or diagnostic procedure was unforeseen or was not known to be needed at the time consent was obtained, and the patient has consented to allow the responsible physician to make the decision concerning such procedure.
6. A prior consent to surgical or diagnostic procedures obtained pursuant to the provisions of this Code section shall be deemed to be valid consent for the responsible physician and all medical personnel under the direct supervision and control of the responsible physician in the performance of such surgical or diagnostic procedure and for all other medical personnel otherwise involved in the course of treatment of the patient's condition.
7. The Georgia Composite Medical Board shall be required to adopt and have the authority to promulgate rules and regulations governing and establishing the standards necessary to implement this chapter specifically including but not limited to the disciplining of a physician who fails to comply with this Code section.
8. As used in this Code section, the term "responsible physician" means the physician who performs the procedure or the physician under whose direct orders the procedure is performed by a nonphysician.

(Code 1981, §31-9-6.1, enacted by Ga. L. 1988, p. 1443, § 1; Ga. L. 1989, p. 178, § 1; Ga. L. 1990, p. 1400, § 1; Ga. L. 2001, p. 4, § 31; Ga. L. 2009, p. 859, §§ 2, 3/HB 509.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, a comma was inserted following "spinal anesthesia" in the introductory paragraph of subsection (a).

Pursuant to Code Section 28-9-5, in 1990, "that" was deleted following "showing" at the end of the introductory language in subsection (d).

Editor's notes.

- Ga. L. 1988, p. 1443, § 3, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1989, and shall apply to all such surgical or diagnostic procedures performed on or after January 1, 1989."

Law reviews.

- For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For article, "Albany Urology Clinic, P.C. v. Cleveland: Why You Should Always Ask Your Urologist if He Is a Cocaine Addict," see 52 Mercer L. Rev. 1159 (2001). For article, "Doreika v. Blotner: Affirming Ketchup against Judicial Mustard," see 60 Mercer L. Rev. 807 (2009). For article, "Eleventh Circuit Survey: January 1, 2008 - December 31, 2008: Casenote: Shots, Shoes, and Self-Representation: Indiana v. Edwards and the New Limitation on the Sixth Amendment Right of Self-Representation," see 60 Mercer L. Rev. 1509 (2009). For annual survey of law on appellate practice and procedure, see 62 Mercer L. Rev. 25 (2010). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For note, "Informed Confusion: The Doctrine of Informed Consent in Georgia," see 37 Ga. L. Rev. 1129 (2003). For note, "An Advance Directive: The Elective, Effective Way to be Protective of Your Rights," see 68 Mercer L. Rev. 521 (2017).

JUDICIAL DECISIONS

Requisite disclosure defined.

- Georgia's informed consent law does not require physicians to inform patients of all alternatives to surgery; it requires disclosure of only those alternatives that are "generally recognized and accepted by reasonably prudent physicians." Accordingly, a doctor was not liable for failing to inform a heart patient of a relatively unknown therapy treatment as an alternative to open heart surgery. Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993).

Chiropractic treatment is not included among the matters for which informed consent is required by O.C.G.A. § 31-9-6.1. Blotner v. Doreika, 285 Ga. 481, 678 S.E.2d 80 (2009).

Physician's duty to disclose risks.

- To the extent there is a duty in Georgia pursuant to O.C.G.A. § 31-9-6.1 to disclose risks associated with a procedure performed by a doctor, that duty rests squarely upon the doctor. Butler v. South Fulton Medical Ctr., Inc., 215 Ga. App. 809, 452 S.E.2d 768 (1994).

Physician was not under an affirmative obligation, either under statute or common law, to disclose drug use to patients prior to rendering services, and a physician's failure to make such disclosure could not be the basis for an independent cause of action against the physician. Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000), reversing Cleveland v. Albany Urology Clinic, 235 Ga. App. 838, 509 S.E.2d 664 (1998).

Informed consent for submission of claims not required.

- In the plaintiff's second amended complaint alleging four schemes that resulted in the presentation of false or fraudulent claims for payment to Medicaid and PeachCare in violation of the Georgia False Medicaid Claims Act, O.C.G.A. § 49-4-168 et seq., the complaint failed to state a claim for implied false certification as written informed consent for the claims submitted by the defendants was not required, and the defendants did not violate any requirement with regard to plans of care. Hill v. Bd. of Regents of the Univ. Sys. of Ga., 351 Ga. App. 455, 829 S.E.2d 193 (2019), cert. denied, No. S19C1531, 2020 Ga. LEXIS 164 (Ga. 2020).

Claims arising out of failure to disclose physician's limitations.

- Patient's complaint could be read to adequately plead claims for fraud, battery, and negligent misrepresentation by alleging that the doctor failed to inform the patient of the doctor's known disabilities prior to the surgery; the known physical limitations caused the doctor to perform the surgery in a deficient manner; and the patient experienced complications as a direct result of the surgery. Holmes v. Lyons, 346 Ga. App. 99, 815 S.E.2d 252 (2018).

Statute of repose.

- Five year statute of repose contained in O.C.G.A. § 9-3-71 applied to a battery claim based on the defendant's alleged failure to obtain the plaintiff's consent to the injection pursuant to O.C.G.A. § 31-9-6.1. Blackwell v. Goodwin, 236 Ga. App. 861, 513 S.E.2d 542 (1999).

Action not within scope of Code section.

- Georgia's implied consent statute, O.C.G.A. § 31-9-6.1(d), did not require a patient to file an expert affidavit with a complaint for fraud, misrepresentation, and deceit against a physician that alleged that the physician knowingly and intentionally misrepresented the nature and quality of a local hospital's equipment; the patient's allegations fell outside the scope of § 31-9-6.1 because the claim that the physician affirmatively and intentionally misled the patient with respect to the local hospital's equipment for the purpose of inducing the patient to have heart surgery performed at the local hospital alleged intentional misrepresentation and not merely a failure to disclose a known risk. Murrah v. Fender, 282 Ga. App. 634, 639 S.E.2d 595 (2006).

Cause of action.

- O.C.G.A. § 31-9-6.1 does not itself provide a cause of action but imposes disclosure requirements upon physicians before performing certain procedures. Campbell v. United States, 795 F. Supp. 1127 (N.D. Ga. 1991), aff'd, 962 F.2d 1579 (11th Cir. 1992), cert. denied, 507 U.S. 909, 113 S. Ct. 1254, 122 L. Ed. 2d 653 (1993).

While breach of the statute's requirements may support a cause of action under the medical malpractice statutes, the statute presupposes that one of the identified procedures was performed. Thus, there is no cause of action if none of the named procedures were performed. Campbell v. United States, 795 F. Supp. 1127 (N.D. Ga. 1991), aff'd, 962 F.2d 1579 (11th Cir. 1992), cert. denied, 507 U.S. 909, 113 S. Ct. 1254, 122 L. Ed. 2d 653 (1993).

Even if the informed consent statute applied to the patient's action against the dentist for damage the dentist allegedly caused when the dentist gave the patient an injection to numb pain, as the patient requested, the statute explicitly provided that violation of the statute did not give rise to a separate cause of action, but instead may give rise to a medical malpractice action; accordingly, the trial court did not err in granting partial summary judgment to the dentist on the patient's allegation that the informed consent statute was violated. Additionally, the injection was neither a surgical procedure nor one of the diagnostic procedures specified in the statute regarding the situations in which a healthcare provider had to obtain a patient's informed consent. Pope v. Davis, 261 Ga. App. 308, 582 S.E.2d 460 (2003).

Strictly construing O.C.G.A. § 31-9-6.1(d) of Georgia's informed consent statute, the statute contemplates a cause of action based on an injury resulting from an undisclosed material risk of the procedure. This is apparent from reading § 31-9-6.1(d)(2), requiring an injury resulting from information that was not disclosed, with the requirement that an expert testify that such injury was caused by a material risk required to be disclosed pursuant to § 31-9-6.1(a)(3). Callaway v. O'Connell, 44 F. Supp. 3d 1316 (M.D. Ga. Aug. 29, 2014).

Personal reasons for limitations on medical practice not subject to mandatory disclosure.

- In a medical malpractice suit, a breach of fiduciary duty claim based on a doctor's failure to disclose why the doctor no longer delivered babies failed as a matter of law because the personal reasons why a doctor limited the doctor's practice area was not among the mandatory disclosures under the informed consent statute, O.C.G.A. § 31-9-6.1(a). Hooks v. Humphries, 303 Ga. App. 264, 692 S.E.2d 845 (2010).

Procedures not within scope of section.

- O.C.G.A. § 31-9-6.1 did not apply to a thoracic sympathetic neurolytic block to relieve pain. Butler v. South Fulton Medical Ctr., Inc., 215 Ga. App. 809, 452 S.E.2d 768 (1994).

Summary judgment was properly granted dismissing a patient's claim under O.C.G.A. § 31-9-6.1, seeking to hold doctors liable for failure to obtain informed consent to the administration of anesthesia during cataract surgery because the surgery was not performed under any of the three types of anesthesia specified. Murphy v. Berger, 273 Ga. App. 798, 616 S.E.2d 132 (2005).

Because Georgia did not recognize a common law action for lack of informed consent, and because neither the mouth nor the jaw was considered a major region under O.C.G.A. § 31-9-6.1(a), the trial court did not err in granting partial summary judgment to a dentist on a patient's informed consent claim. Roberts v. Connell, 312 Ga. App. 515, 718 S.E.2d 862 (2011), cert. denied, No. S12C0488, 2012 Ga. LEXIS 654 (Ga. 2012).

Consent form created a rebuttable presumption that the plaintiff gave consent to the defendant doctor to perform an esophageal dilation because the procedure was not known to be needed at the time consent was obtained. Tuten v. Costrini, 238 Ga. App. 350, 518 S.E.2d 751 (1999).

Consent valid for medical personnel and physicians.

- A valid consent obtained from plaintiff prior to plaintiff's surgery constituted a valid consent both as to the responsible physician and for all medical personnel, whether or not named, involved in the performance of the surgery under the responsible physician's direct supervision and control. Cardio TVP Surgical Assocs., P.C. v. Gillis, 272 Ga. 404, 528 S.E.2d 785 (2000), reversing Gillis v. Cardio TVP Surgical Assocs., P.C., 239 Ga. App. 350, 520 S.E.2d 767 (1999).

Nothing in O.C.G.A. § 31-9-6.1 renders a consent invalid when the names of the nonphysicians participating in the surgical procedure are not included in the consent form. Cardio TVP Surgical Assocs., P.C. v. Gillis, 272 Ga. 404, 528 S.E.2d 785 (2000), reversing Gillis v. Cardio TVP Surgical Assocs., P.C., 239 Ga. App. 350, 520 S.E.2d 767 (1999).

No battery claim.

- Trial court erred in denying summary judgment to the medical defendant on the plaintiff's battery claim based on the surgical procedure because the uncontroverted evidence of record reflected that there was basic consent for the surgical procedure and allegations that the doctor did not fully disclose the nature of the procedure reflected on an informed consent, not a battery, claim. Doctors Hosp. of Augusta, LLC v. Alicea, 332 Ga. App. 529, 774 S.E.2d 114 (2015), aff'd, 299 Ga. 315, 788 S.E.2d 392 (2016).

Cited in Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000); Bethea v. Coralli, 248 Ga. App. 853, 546 S.E.2d 542 (2001).

RESEARCH REFERENCES

ALR.

- Propriety of "hindsight" charge in medical malpractice actions, 124 A.L.R.5th 623.

Liability of dentist for extraction of teeth - Lack of informed consent, 125 A.L.R.5th 403.

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