New Information About Informed Consent

Q: Are physicians required to use the disclosure and consent forms that the Texas Medical Disclosure Panel (TMDP) created for certain procedures?

 A: Use of these forms (see below) is not required. However, using them gives physicians an important measure of protection. TMA recommends that physicians always use them when applicable.

TMDP has created two separate lists (List A and B) of those medical treatments and surgical procedures that do and do not require disclosure.

If the panel has not made a determination either way regarding a certain procedure, the physician is under a duty to “disclose all risks or hazards that could influence a reasonable person in making a decision to consent to the procedure.” If a procedure is placed on List A (requires disclosure), the panel also lists the risks that must be disclosed.

If a physician uses a TMDP-adopted form to get written consent for List A procedures or if the panel has placed a procedure on List B (disclosure not necessary), a legal presumption that the physician did not neglect his or her duty to disclose and obtain consent is created.

The benefit of the legal presumption manifests itself at trial, where the burden to produce enough evidence to convince a jury that consent was, in fact, not given or that the risks and hazards were not adequately described is placed upon the opposing party.

Equally important: For procedures on List A, if the physician does not use the panel's adopted form to get written consent, a presumption against the physician is created. However, this presumption may be dispelled in court with evidence that consent was obtained.

But remember: Although using a signed consent form is important for obtaining the benefits of the law and documenting the patient’s consent, it is not a substitute for a discussion between physician and patient about the proposed medical treatment. Informed consent is not a form but the patient's actual agreement after receiving the necessary information about the proposed medical treatment.

Disclosure and Consent Forms  

  • Medical and Surgical Procedures — English (Word) (PDF); Spanish (Word) (PDF) 
  •  Radiation Therapy — English (Word) (PDF); Spanish (Word) (PDF) 
  • Hysterectomy — English (Word) (PDF); Spanish (Word) (PDF) 
  • Anesthesia and/or Perioperative Pain Management (Analgesia) (Word) (PDF)
  • Electroconvulsive Therapy (ECT) — The Texas Department of State Health Services (DSHS) has published a standard consent form for ECT (PDF). Electroconvulsive therapy is List A procedure; the TMDP allows physicians to use the DSHS form as long as it contains the specific risks and hazards for ECT the TMDP has identified. Or the physician can use the panel’s Medical and Surgical Procedures disclosure and consent form. Either way, the anesthesia used in conjunction with administering of ECT also may be a List A procedure, depending on the type of anesthesia; if so, the physicians would still need to use the panel’s Anesthesia and/or Perioperative Pain Management (Analgesia) disclosure and consent form.  

Published Oct. 17, 2012 

 NOTICE: This information is provided as a commentary on legal issues and is not intended to provide advice on any specific legal matter. This information should NOT be considered legal advice and receipt of it does not create an attorney-client relationship.The Office of the General Counsel of the Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. Although TMA has attempted to present materials that are accurate and useful, some material may be outdated and TMA shall not be liable to anyone for any inaccuracy, error or omission, regardless of cause, or for any damages resulting therefrom. Any legal forms are only provided for the use of physicians in consultation with their attorneys. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.  

 


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