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mended treatment plan and the prognosis for its success, and
any alternative treatment plans or procedures, as long as they
are reasonably appropriate. During further deliberations, the
Court focused on the contributory negligence aspect of the
case, noting that patients have a duty to protect themselves
from harm. The Court noted three types of situations wherein
a patients actions could potentially constitute contributory
negligence in response to a claim for lack of informed consent.
The first issue concerned the responsibility patients have
to tell doctors the truth and provide complete and accurate
information regarding their personal, family, or health history
in response to doctors requests for this information. The
Court noted that:
A patient is usually the primary source of information
about the patients material personal, family, and medical histories. If a doctor is to provide a patient with the
information required [under the informed consent
statute] it is imperative thatfor patients to exercise
ordinary care, they must tell the truth and give complete
and accurate information about personal, family and
medical histories to a doctor to the extent possible in
response to the doctors requests for information when
the requested information is materialand that a
patients breach of that duty might, under certain circumstances, constitute contributory negligence.
In a related footnote, the Court noted that it would not
address the question of whether or not this duty required a
patient to volunteer information or to spontaneously advise
the doctor of material personal, family, or medical [information] that the patient reasonably knows should be disclosed
if the doctor does not inquire.
The second issue centered around what responsibilities
patients have in asking questions of doctors and in seeking
out information to aid them in making informed decisions.
The Court opined that no duty exists on the part of the
patient to:
...[A]scertain the truth or completeness of the
information presented by the doctor, nor does a patient
have an affirmative duty to ask questions or to independently seek information. It is illogical and contrary
to the concept of informed consent to place on patients
the burden of asking questions of their doctors or
engaging in their own independent research. It is the
doctor who possesses medical knowledge and skills
and who has the affirmative dutyboth to determine
what a reasonable patientwould want to know and to
provide that information.[A] patient is not in a position to know treatment options and risks and, if
unaided, is unable to make an informed decision.
The Court went on to note that this decision did not mean
that a patient could never be held contributorily negligent for
failing to seek information, just that the circumstances would
have to be extraordinary to require patients not to trust the
Information pertaining to litigation, legislation, and ethics will be reported under this section of the American
Journal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, readers comments, and
reprint requests may be submitted to Laurance Jerrold, DDS, JD, 100 Clark Ave, Massapequa, NY 11758.