Kentucky Informed Consent

The courts in Kentucky have long recognized the right of individuals to make their own medical decisions. In DeGrella v. Elston, 858 S.W.2d 698 (Ky.1993) the Supreme Court of Kentucky, citing the United States Supreme Court decision in Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891) stated:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of other, unless by clear and unquestionable authority of law.

This right was expressed by Judge Benjamin Cardozo, during his tenure on the high court of New York, as follows:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 130, 105 N.E. 92, 93 (1914).

In Tabor v. Scobee, 254 S.W.2d 474 (Ky.App.1951) the Court noted that “every human being of adult years and sound mind has a right to determine what shall be done with his own body.” In Grubbs ex rel. Grubbs v. Barbourville Family Health Center, 120 S.W.3d 682 (Ky.2003) the Supreme Court of Kentucky noted the duty of fidelity imposed upon the physician that arises from the special relationship between a physician and patient:

The relationship of a patient to his physician is by its nature one of the most intimate. Its foundation is the theory that the physician is learned, skilled, and experienced in the afflictions of the body about which the patient ordinarily knows little or nothing but which are of the most vital importance to him. Therefore, the patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of his doctor. It is the physician’s duty to act with the utmost good faith and to speak fairly and truthfully at the peril of being held liable for damages for fraud and deceit.

With the importance of an informed consent clearly established by the Kentucky courts, its legislature adopted Kentucky’s Informed Consent Statute which is set out in KRS 304.40-320 which provides as follows:

In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element, the claimant’s informed consent shall be deemed to have been given where:

(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and

(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures;

(3) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent.

Kentucky’s Informed Consent Statute shows that it clearly contemplates that physicians are required to tell patients about “substantial risks and hazards inherent in the proposed treatment or procedure”. And, the recent case of Horsley v. Smith, 2015 WL 602813 (Ky.Ct.App.2015) decision rendered February 13, 2015 notes that:

The law is also clear as to when a physician’s legal duty to a patient begins: “The physician’s duty to a patient arises when, by his words or deeds, he agrees to treat a patient, thus establishing a physician/patient relationship.” …that overarching duty continues to apply uniformly throughout the duration of the physician/patient relationship, embracing every medical responsibility, whether that responsibility is:

(1) taking the patient’s history; or

(2) diagnosing his illness; or

(3) administering anesthesia; or

(4) treating his ailment; or

(5) informing him of risks and options; or

(6) performing surgery; or

(7) engaging in post-operative care;

or conducting any of the myriad of acts necessary to the administration of medical care to the patient. Each of these separate medical responsibilities must be fulfilled in accordance with the medical profession’s expectations; failure to fulfill a responsibility constitutes a breach of the overarching legal duty identified in Hyman & Armstrong. This is not a new concept.

Finally, to lay to rest any question that Kentucky’s Informed Consent Statute, KRS 304.40-320 imposes on a physician the specific duty to inform patients of the risks of treatment, in Sargent v. Shaffer, 467 S.W.3d 191 (Ky.2015), the Supreme Court of Kentucky discussed in detail a physician’s duty to provide informed consent. The Supreme Court of Kentucky stated:

It is a well-established principal of law that, as an aspect of proper medical practice, physicians have a general duty to disclose to their patients in accordance with accepted medical standards the risks and benefits of the treatment to be performed.

The Supreme Court of Kentucky noted that in addition to this general duty, KRS 304.40-320 created a special duty on the part of the physician to provide informed consent. The Kentucky Supreme Court noted that KRS 304.40-320 is an exercise of the legislature’s prerogative to amplify, or expound upon, the general duty of a medical provider to obtain a patient’s informed consent with specific conditions for compliance. The Supreme Court of Kentucky went on to state:

The introductory provision of KRS 304.40-320 leaves no doubt that the statute is intended to apply in claims of medical malpractice based upon the element of informed consent. Informed consent, or the lack thereof, plainly is an element in this medical malpractice action.

The Supreme Court, in discussing the duty to provide informed consent stated:

Not only must the physician’s action in disclosing the risks be “in accordance with the accepted standard of medical…practice among members of the profession with similar training and experience” as stated in Subsection (1), it is further required that the information imparted by the physicians be stated so as to provide “a reasonable individual” with “a general understanding of the procedure…[any] acceptable alternative[s]…[the] substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.”

Thus, under Sargent, a physician must disclose the substantial risks and hazards inherent in the proposed treatment or procedures. In Sargent, the Supreme Court of Kentucky found that the plaintiff’s tendered jury instruction on the issue fairly and accurately captured the general duty to obtain a patient’s informed consent, including the elements of KRS 304.40-320. That instruction, which the Supreme Court stated would serve well as an appropriate model for similar cases was as follows:

It was the duty of William Shaffer, MD to obtain Loretta Sargent’s informed consent before surgery. Informed consent shall be deemed to have been given where (1) the action of Dr. Shaffer in obtaining the consent of the patient was in accordance with the accepted standard of medical practice among members of the profession with similar training and experience; and (2) a reasonable individual, from the information provided by William Shaffer, MD, would have a general understanding of the procedure and medically acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.

The Supreme Court of Kentucky, in Sargent, has made it clear that a physician has an obligation to inform the patient of the risks of surgery.