Blowing Blotner: A Missed Opportunit to Mend Georgia's Informed Consent Law

Robert Gatter, Saint Louis University - Main Campus

Abstract

Recently the Georgia Supreme Court ruled that a state informed consent statute precluded judicial recognition of a common law right for patients to receive the disclosure of treatment risks from their doctors. Yet the state statute provides very limited and arbitrary protection because the right to disclosure is triggered only when certain procedures are prescribed. So, for example, a patient has the right to learn the risks of cancer surgery but not chemotherapy. The Georgia Supreme Court's decision makes that state's informed consent law among the worst in the nation. Worse still, the Court could have avoided this mess by interpreting the statute as creating a presumptive safe harbor from liability in certain cases. Having failed to do so, the Court has not only failed to protect Georgians, but also left state law vulnerable to attack on equal protection grounds.