UNINFORMED CONSENT
C.J.I. 15:11-13 (2003)
15:10. Uninformed Consent - Elements Of Liability
For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of negligence based on lack of informed consent, you must find all of the following have been proved by a preponderance of the evidence:
1. The defendant (insert an appropriate description of the procedure, treatment, surgery, tests, etc., that the plaintiff claims the defendant performed or prescribed) (on) (for) the plaintiff;
2. The defendant negligently failed to obtain the plaintiff's informed consent before (insert appropriate description of procedure, etc., as above);
3. A reasonable person in the same or similar circumstances as the plaintiff would not have consented to (insert appropriate description) had (he) (she) been given the information required for informed consent; and
4. The defendant's negligent failure caused the plaintiff (additional) (injuries) (damages) (losses). If you find that any one or more of these (number) statements has not been proved, then your verdict must be for the defendant.
On the other hand, if you find that all of these (number) statements have been proved, (then your verdict must be for the plaintiff) (then you must consider the defendant's affirmative defense(s) of [insert any affirmative defense that would be a complete defense to plaintiff's claim]).
If you find that (this affirmative defense has) (any one or more of these affirmative defenses have) been proved by a preponderance of the evidence, then your verdict must be for the defendant.
However, if you find that (this affirmative defense has not) (none of these affirmative defenses have) been proved, then your verdict must be for the plaintiff.
15:11. Information Required
A physician must obtain the patient's informed consent before (treating) (operating on) (or) (performing a procedure on) the patient.
For a patient's consent to be an informed consent, a physician must have informed the patient of the following:
1. The nature of the (illness) (injury) (or) (medical condition);
2. The nature of the (operation) (procedure) (or) (treatment);
3. The alternative treatments available, if any; and
4. The substantial risks, if any, involved in undergoing the (operation) (procedure) (or) (treatment), and the substantial risks, if any, of the alternative treatments. A physician must inform a patient of the above (insert number) items to the extent a reasonable physician practicing in the same field of practice (as a general practitioner in the same or similar locality) (as a specialist), at the same time, would have under the same or similar circumstances. The failure to do so is negligence.
15:12. Substantial Risk - Defined
A substantial risk is one that a physician knows or that a reasonably careful physician should know would be important to the patient in deciding whether to submit to a particular (operation) (treatment) (or) (procedure).
15:13. Proof Of Negligent Failure To Obtain Informed Consent
If you find the defendant, (name), (insert appropriate description of the procedure, etc., as in numbered paragraph 1 of Instruction 15:10), (on) (for) the plaintiff, (name), and the plaintiff had (injuries) (damages) (losses) because of a risk associated with that (insert appropriate description, e.g., "treatment", "procedure", "test", etc.), and the defendant did not inform the plaintiff of that risk, then you must find that the defendant negligently failed to obtain the plaintiff's informed consent.
Current as of 2004; Legislative Citations Deleted