'Usual and Customary Practice' Testimony as a Defense in Medical Malpractice Informed Consent Issues

摘要

Because of the lack of adequate information in many physicians charts, it is sometimes not possible to find that the physician discussed informed consent with risks and complications and alternative treatments. The law in some jurisdictions allows the use of usual and customary practice to establish that the physician has informed the patient.In the process of informed consent, the patient must be fully informed in order to make a decision as to the proposed treatment. The physician should have a record in the medical chart of the discussion having taken place. Many times the physician forgets to make the chart entry or out of habit does not make the necessary chart entry. When it comes to litigation, the physician may state that the discussion took place because that it is his or her usual custom and practice, though the patient may state that the discussion of the particular complication never took place or that he or she does not recall the discussion. The jury has to take into account the demeanor of the individuals testifying and then decide which one sounds more convincing. The use of "usual and customary practice" testimony is acceptable to present as evidence in many jurisdictions.