Informed Consent Depends on What a Reasonable Patient Would Do
An informed consent case is one in which the patient was aware of the medical or surgical procedure to be performed, but was unaware of the associated risks. For causation, the plaintiff must prove that having informed consent would have made a difference - in other words, the plaintiff must prove that she would not have consented to the procedure if told about the danger. Under Tennessee law, the question is not whether this individual patient would have consented, but whether a reasonable person in the patient's position would have. Take a look at the Tennessee Supreme Court's 1999 opinion in Ashe v. Radiology Oncology Associates, 9 S.W.3d 119 for a good summary of the law of informed consent in this state.
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Informed Consent a Jury Question
The Supreme Court of North Dakota has ruled that whether or not a reasonable patient would accept the risk of death from a procedure is a jury question and not one for which expert testimony is necessary. The plaintiff's wife died after an IVP. The doctors admitted that they did not inform the patient of the risk of death.
Here is the opinion.
North Dakota does not appear to require expert testimony on what should have been disclosed to the patient; Tennessee law does require expert testimony on this subject. However, expert testimony should not be required on the issue of whether or not the reasonably prudent person would, under the circumstances, accept the risk of the procedure.
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