AMI 1508 Duty to Obtain Informed Consent
Ark. Model Jury Instr., Civil AMI 1508
Arkansas Model Jury Instructions-Civil
December 2023 Update
Chapter 15. Malpractice and Breach of Fiduciary Duty
AMI 1508 Duty to Obtain Informed Consent
In obtaining consent to perform [treatment][procedure][surgery], a [physician][surgeon][dentist][medical care provider] is under a duty to supply adequate information to enable the [person authorized to give consent for the] patient to make a reasoned and intelligent decision to give or withhold consent.
Other than in an emergency situation, the information required is that type as would customarily have been given at the time of treatment to [a person authorized to give consent for] a patient in a similar situation by other [physicians][surgeons][medical care providers] with similar training and experience practicing in the locality in which [he][she] practices or in a similar locality.
[In deciding whether adequate information was supplied, you may consider whether it was reasonable for (defendant) to limit such disclosure because it could be expected to adversely and substantially affect (patient's) condition.]
NOTE ON USE
This instruction should be given when a question is submitted as to whether adequate information was supplied by the medical care provider in connection with the granting or withholding of consent to treatment.
Select the bracketed description of the medical care provider appropriate to the defendant. For medical care providers other than those specifically named herein, insert the type of practitioner from the categories specified in Ark. Code Ann. § 16-114-201(2).
If the consent in issue was given by someone authorized to act upon behalf of a patient, e.g., parent on behalf of a minor, the bracketed phrase preceding “patient” should be used.
The last paragraph should be given only if there is substantial evidence that disclosure was limited because of its anticipated effect upon the patient's condition.
This instruction should not be given when the plaintiff claims that the medical care provider failed to obtain any consent to treatment from the patient when consent was required, rather than that the medical care provider failed to provide adequate information. Instead, an appropriate non-model instruction should be given.
COMMENT
This instruction is based upon the substantive rule set forth in Ark. Code Ann. § 16-114-206(b). An instruction based upon that statute was given implicit approval by the Supreme Court in Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995).
Arkansas has adopted the position that the necessity for and scope of information to be given in connection with the decisions to give or withhold consent is a medical determination. Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980). Consequently, this is a matter which, in most instances, must be established by expert testimony. Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002); Parkerson v. Arthur, 83 Ark. App. 240, 125 S.W.2d 825 (2003); Fuller, supra. The Supreme Court held in Eady, supra, that the requirement for expert testimony in an informed consent case is constitutional.
Some of the factors set forth in Ark. Code Ann. § 16-114-206(b)(2) are relevant to proximate cause, rather than duty owed. These are treated in AMI 1509.
The Arkansas Supreme Court in Millsap v. Williams, 2014 Ark. 469, ruled that it is an abuse of discretion to give this instruction when the plaintiff claims that the medical care provider failed to obtain any consent to treatment from the patient when consent was required, rather than that the medical care provider failed to provide adequate information. For discussion of Millsap, see the Comment to AMI 1506.
© 2023 Arkansas Supreme Court Committee on Jury Instructions-Civil
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