Texas PJC Malpractice 2022

M EDICAL M ALPRACTICE —T HEORIES OF D IRECT L IABILITY

PJC 51.14

PJC 51.14

Informed Consent (Statutory)—Procedure on List A— Validity of Disclosure Instrument in Issue

QUESTION ______ At the time Paul Payne signed the consent form, was he without mental capacity ? It is presumed that Paul Payne had the required mental capacity, which pre sumption may be overcome if he was without mental capacity. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 51.14 submits the validity of the disclosure instrument if the evidence shows that the surgical procedure was on the list requiring disclosure (list A) and an instrument exists reflecting the required disclosure but there is also evidence that the instrument is invalid. See Tex. Civ. Prac. & Rem. Code §§ 74.104–.106. If the physician has obtained the patient’s signature on a consent form conforming with the panel’s requirements and containing the risks enumerated on list A, the only means by which the patient may recover for failure to obtain informed consent is to prove the invalidity of the form and that the risks had not otherwise been disclosed to him. Person authorized to consent for patient. If appropriate, the phrase a person authorized to consent for Paul Payne may be substituted for Paul Payne . Particular circumstances. Appropriate words describing the particular circum stances alleged to invalidate the disclosure instrument should be substituted for the words without mental capacity if there is evidence that the instrument reflecting such disclosure may be invalid because of forgery or the incompetence or illiteracy of the person apparently consenting or of the subscribing witness. Effect of answer. If the jury answers the question “No,” the invalidity of the form has not been proved and the cause of action for failure to obtain informed consent fails. If the jury answers “Yes,” the plaintiff must then prove that the physician other wise failed to disclose the risks and hazards required to be disclosed and must prove proximate cause. Such issues should be conditionally submitted under PJC 51.10– 51.12, as appropriate under the evidence.

87