44-2816. Informed consent, defined.
Informed consent shall mean consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Failure to obtain informed consent shall include failure to obtain any express or implied consent for any operation, treatment, or procedure in a case in which a reasonably prudent health care provider in the community or similar communities would have obtained an express or implied consent for such operation, treatment, or procedure under similar circumstances.
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Annotations
Informed consent under this section does not need to be given in writing. Bank v. Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019).
Disclosure of a doctor's disciplinary history is necessary only when mandated by the standard of care. Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
To be "properly informed" under section 44-2820, a patient must be informed under the standard articulated in this section. Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
This section has been construed as a legislative enactment of the "professional theory" of a physician's duty to disclose the risks of a treatment or procedure. Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
A physician's duty to obtain informed consent is measured by what information would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004).
There are two parts to the definition of informed consent. The first part refers to the information that is provided to the patient regarding the procedure that is to be performed. The second part refers to the obligation of the health care provider to obtain the patient's express or implied consent to perform any operation, treatment, or procedure. Walls v. Shreck, 265 Neb. 683, 658 N.W.2d 686 (2003).
A hospital does not have a duty to obtain a patient's informed consent merely because it meets the statutory definition of "health care provider" as that term is used in this section. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997).
The standard of care in a medical malpractice or negligence action based on inadequate information for a patient's consent to an operation, treatment, or procedure is not determined by a defendant physician's personal or customary routine, but, rather, is based on information which physicians ordinarily supply to patients in like circumstances in the locality or similar localities. Under this section, Nebraska has adopted a "professional" theory, under which expert evidence is indispensable to establish what information would ordinarily be provided under the prevailing circumstances by physicians in the relevant and similar localities. Eccleston v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1992).
The language of this statute is adopted for the purposes of malpractice actions against chiropractors. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).
Because of the definition of "informed consent" as outlined in this provision, the Legislature has committed this state to the "professional" theory of the duty of a physician to disclose the risks of a treatment. The professional theory provides that expert evidence is necessary to determine if the physician acted the same as a reasonable medical practitioner under the same or similar circumstances and similar locality. Smith v. Weaver, 225 Neb. 569, 407 N.W.2d 174 (1987).