Requisite disclosure defined.

- Georgia's informed consent law does not require physicians to inform patients of all alternatives to surgery; it requires disclosure of only those alternatives that are "generally recognized and accepted by reasonably prudent physicians." Accordingly, a doctor was not liable for failing to inform a heart patient of a relatively unknown therapy treatment as an alternative to open heart surgery. Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993).

Chiropractic treatment is not included among the matters for which informed consent is required by O.C.G.A. § 31-9-6.1. Blotner v. Doreika, 285 Ga. 481, 678 S.E.2d 80 (2009).

Physician's duty to disclose risks.

- To the extent there is a duty in Georgia pursuant to O.C.G.A. § 31-9-6.1 to disclose risks associated with a procedure performed by a doctor, that duty rests squarely upon the doctor. Butler v. South Fulton Medical Ctr., Inc., 215 Ga. App. 809, 452 S.E.2d 768 (1994).

Physician was not under an affirmative obligation, either under statute or common law, to disclose drug use to patients prior to rendering services, and a physician's failure to make such disclosure could not be the basis for an independent cause of action against the physician. Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000), reversing Cleveland v. Albany Urology Clinic, 235 Ga. App. 838, 509 S.E.2d 664 (1998).

Claims arising out of failure to disclose physician's limitations.

- Patient's complaint could be read to adequately plead claims for fraud, battery, and negligent misrepresentation by alleging that the doctor failed to inform the patient of the doctor's known disabilities prior to the surgery; the known physical limitations caused the doctor to perform the surgery in a deficient manner; and the patient experienced complications as a direct result of the surgery. Holmes v. Lyons, 346 Ga. App. 99, 815 S.E.2d 252 (2018).

Statute of repose.

- Five year statute of repose contained in O.C.G.A. § 9-3-71 applied to a battery claim based on the defendant's alleged failure to obtain the plaintiff's consent to the injection pursuant to O.C.G.A. § 31-9-6.1. Blackwell v. Goodwin, 236 Ga. App. 861, 513 S.E.2d 542 (1999).

Action not within scope of Code section.

- Georgia's implied consent statute, O.C.G.A. § 31-9-6.1(d), did not require a patient to file an expert affidavit with a complaint for fraud, misrepresentation, and deceit against a physician that alleged that the physician knowingly and intentionally misrepresented the nature and quality of a local hospital's equipment; the patient's allegations fell outside the scope of § 31-9-6.1 because the claim that the physician affirmatively and intentionally misled the patient with respect to the local hospital's equipment for the purpose of inducing the patient to have heart surgery performed at the local hospital alleged intentional misrepresentation and not merely a failure to disclose a known risk. Murrah v. Fender, 282 Ga. App. 634, 639 S.E.2d 595 (2006).

Cause of action.

- O.C.G.A. § 31-9-6.1 does not itself provide a cause of action but imposes disclosure requirements upon physicians before performing certain procedures. Campbell v. United States, 795 F. Supp. 1127 (N.D. Ga. 1991), aff'd, 962 F.2d 1579 (11th Cir. 1992), cert. denied, 507 U.S. 909, 113 S. Ct. 1254, 122 L. Ed. 2d 653 (1993).

While breach of the statute's requirements may support a cause of action under the medical malpractice statutes, the statute presupposes that one of the identified procedures was performed. Thus, there is no cause of action if none of the named procedures were performed. Campbell v. United States, 795 F. Supp. 1127 (N.D. Ga. 1991), aff'd, 962 F.2d 1579 (11th Cir. 1992), cert. denied, 507 U.S. 909, 113 S. Ct. 1254, 122 L. Ed. 2d 653 (1993).

Even if the informed consent statute applied to the patient's action against the dentist for damage the dentist allegedly caused when the dentist gave the patient an injection to numb pain, as the patient requested, the statute explicitly provided that violation of the statute did not give rise to a separate cause of action, but instead may give rise to a medical malpractice action; accordingly, the trial court did not err in granting partial summary judgment to the dentist on the patient's allegation that the informed consent statute was violated. Additionally, the injection was neither a surgical procedure nor one of the diagnostic procedures specified in the statute regarding the situations in which a healthcare provider had to obtain a patient's informed consent. Pope v. Davis, 261 Ga. App. 308, 582 S.E.2d 460 (2003).

Strictly construing O.C.G.A. § 31-9-6.1(d) of Georgia's informed consent statute, the statute contemplates a cause of action based on an injury resulting from an undisclosed material risk of the procedure. This is apparent from reading § 31-9-6.1(d)(2), requiring an injury resulting from information that was not disclosed, with the requirement that an expert testify that such injury was caused by a material risk required to be disclosed pursuant to § 31-9-6.1(a)(3). Callaway v. O'Connell, 44 F. Supp. 3d 1316 (M.D. Ga. Aug. 29, 2014).

Personal reasons for limitations on medical practice not subject to mandatory disclosure.

- In a medical malpractice suit, a breach of fiduciary duty claim based on a doctor's failure to disclose why the doctor no longer delivered babies failed as a matter of law because the personal reasons why a doctor limited the doctor's practice area was not among the mandatory disclosures under the informed consent statute, O.C.G.A.31-9-6.1(a). Hooks v. Humphries, 303 Ga. App. 264, 692 S.E.2d 845 (2010).

Procedures not within scope of section.

- O.C.G.A. § 31-9-6.1 did not apply to a thoracic sympathetic neurolytic block to relieve pain. Butler v. South Fulton Medical Ctr., Inc., 215 Ga. App. 809, 452 S.E.2d 768 (1994).

Summary judgment was properly granted dismissing a patient's claim under O.C.G.A. § 31-9-6.1, seeking to hold doctors liable for failure to obtain informed consent to the administration of anesthesia during cataract surgery because the surgery was not performed under any of the three types of anesthesia specified. Murphy v. Berger, 273 Ga. App. 798, 616 S.E.2d 132 (2005).

Because Georgia did not recognize a common law action for lack of informed consent, and because neither the mouth nor the jaw was considered a major region under O.C.G.A. § 31-9-6.1(a), the trial court did not err in granting partial summary judgment to a dentist on a patient's informed consent claim. Roberts v. Connell, 312 Ga. App. 515, 718 S.E.2d 862 (2011), cert. denied, No. S12C0488, 2012 Ga. LEXIS 654 (Ga. 2012).

Consent form created a rebuttable presumption that the plaintiff gave consent to the defendant doctor to perform an esophageal dilation because the procedure was not known to be needed at the time consent was obtained. Tuten v. Costrini, 238 Ga. App. 350, 518 S.E.2d 751 (1999).

Consent valid for medical personnel and physicians.

- A valid consent obtained from plaintiff prior to plaintiff's surgery constituted a valid consent both as to the responsible physician and for all medical personnel, whether or not named, involved in the performance of the surgery under the responsible physician's direct supervision and control. Cardio TVP Surgical Assocs., P.C. v. Gillis, 272 Ga. 404, 528 S.E.2d 785 (2000), reversing Gillis v. Cardio TVP Surgical Assocs., P.C., 239 Ga. App. 350, 520 S.E.2d 767 (1999).

Nothing in O.C.G.A. § 31-9-6.1 renders a consent invalid when the names of the nonphysicians participating in the surgical procedure are not included in the consent form. Cardio TVP Surgical Assocs., P.C. v. Gillis, 272 Ga. 404, 528 S.E.2d 785 (2000), reversing Gillis v. Cardio TVP Surgical Assocs., P.C., 239 Ga. App. 350, 520 S.E.2d 767 (1999).

No battery claim.

- Trial court erred in denying summary judgment to the medical defendant on the plaintiff's battery claim based on the surgical procedure because the uncontroverted evidence of record reflected that there was basic consent for the surgical procedure and allegations that the doctor did not fully disclosure the nature of the procedure reflected on an informed consent, not a battery, claim. Doctors Hosp. of Augusta, LLC v. Alicea, 332 Ga. App. 529, 774 S.E.2d 114 (2015), aff'd, 299 Ga. 315, 788 S.E.2d 392 (Ga. 2016).

Cited in Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000); Bethea v. Coralli, 248 Ga. App. 853, 546 S.E.2d 542 (2001).

ALR.

- Propriety of "hindsight" charge in medical malpractice actions, 124 A.L.R.5th 623.

Liability of dentist for extraction of teeth - Lack of informed consent, 125 A.L.R.5th 403.