2021 Georgia Code
Title 31 - Health
Chapter 9 - Consent for Surgical or Medical Treatment
§ 31-9-6. Construction of Chapter; Requirements of Valid Consent

1. This chapter shall be liberally construed, and all relationships set forth in this chapter shall include the adoptive, foster, and step relations as well as blood relations and the relationship by common-law marriage as well as ceremonial marriage.
2. A consent by one person authorized and empowered to consent to surgical or medical treatment shall be sufficient.
3. Any person acting in good faith shall be justified in relying on the representations of any person purporting to give consent, including, but not limited to, his identity, his age, his marital status, his emancipation, and his relationship to any other person for whom the consent is purportedly given.
4. A consent to surgical or medical treatment which discloses in general terms the treatment or course of treatment in connection with which it is given and which is duly evidenced in writing and signed by the patient or other person or persons authorized to consent pursuant to the terms of this chapter shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.

(Code 1933, § 88-2906, enacted by Ga. L. 1971, p. 438, § 1; Ga. L. 1991, p. 94, § 31.)

- For article, "Informed Consent: New Georgia Guidelines," discussing law of medical consent in Georgia, in light of Young v. Yarn, 136 Ga. App. 737, 222 S.E.2d 113 (1975), see 12 Ga. St. B. J. 197 (1976). For article, "Georgia's Medical Consent Law," see 21 Ga. St. B. J. 138 (1985). For article, "Doreika v. Blotner: Affirming Ketchup against Judicial Mustard," see 60 Mercer L. Rev. 807 (2009). For note, "Informed Confusion: The Doctrine of Informed Consent in Georgia," see 37 Ga. L. Rev. 1129 (2003). For comment on Young v. Yarn, 136 Ga. App. 737, 222 S.E.2d 113 (1975), see 28 Mercer L. Rev. 377 (1976).

JUDICIAL DECISIONS

Physician's duty to disclose risks.

- To the extent there is a duty in Georgia pursuant to O.C.G.A. § 31-9-6 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).

- Consent based upon failure to disclose material facts which a patient has a right to know is not valid and cannot satisfy subsection (d) of O.C.G.A. § 31-9-6. Gillis v. Cardio TVP Surgical Assocs., P.C., 239 Ga. App. 350, 520 S.E.2d 767 (1999).

Though the doctor never informed the patient that steroid injections were an alternative to surgery, there was no evidence that this omission was fraudulent; thus, the patient was bound by the consent form signed, and the trial court correctly directed a verdict on the patient's battery claim. Bowling v. Foster, 254 Ga. App. 374, 562 S.E.2d 776 (2002).

Physician's duty of disclosure does not include disclosure of risks of treatment. McMullen v. Vaughan, 138 Ga. App. 718, 227 S.E.2d 440 (1976).

- Requirement of disclosure in general terms, the treatment or terms of treatment, cannot be interpreted as including a requirement for disclosure of risks of treatment. Young v. Yarn, 136 Ga. App. 737, 222 S.E.2d 113 (1975); Simpson v. Dickson, 167 Ga. App. 344, 306 S.E.2d 404 (1983).

While attending physician is required to inform patient of general terms of treatment, this duty does not require disclosure of risks of treatment. Fox v. Cohen, 160 Ga. App. 270, 287 S.E.2d 272 (1981).

Physician must inform the patient of the general terms of treatment. This duty does not include a disclosure of "risks of treatment." Robinson v. Parrish, 251 Ga. 496, 306 S.E.2d 922 (1983).

Physician must inform a patient of the general terms of treatment, but a disclosure of the "risks of treatment" need not be given. Sikorski v. Bell, 167 Ga. App. 803, 307 S.E.2d 701 (1983).

Informed consent doctrine is not a viable principle of law in this state. McMullen v. Vaughan, 138 Ga. App. 718, 227 S.E.2d 440 (1976).

Traditional doctrine of informed consent has been specifically rejected and whatever information must be disclosed as to general course of treatment does not include legally specified risks. Parr v. Palmyra Park Hosp., 139 Ga. App. 457, 228 S.E.2d 596 (1976).

- 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).

Disclosure of general course of treatment to patient precludes any action based on lack of consent to treatment undertaken. Holbrook v. Schatten, 165 Ga. App. 217, 299 S.E.2d 128 (1983).

Since appellant signed a consent form authorizing surgery, and the record clearly established that appellant understood the general course of proposed treatment, the appellant was precluded from maintaining an action alleging that defendant/physician breached the physician's duty in failing to warn of risks of treatment or that appellant's consent was thereby rendered invalid absent a showing of fraudulent misrepresentations of material fact. Holbrook v. Schatten, 165 Ga. App. 217, 299 S.E.2d 128 (1983).

- As duty under O.C.G.A. § 31-9-6 does not include a disclosure of risks of treatment, plaintiff-patient cannot sustain an action alleging that the defendant breached the defendant's duty in failing to warn of the risks of treatment or that the plaintiff's consent was thereby rendered invalid. Blount v. Moore, 159 Ga. App. 80, 282 S.E.2d 720 (1981).

- When the doctor responds to a specific question posed by a patient concerning the risks of the contemplated treatment, a duty arises to speak truthfully. Spikes v. Heath, 175 Ga. App. 187, 332 S.E.2d 889 (1985); Smith v. Wilfong, 218 Ga. App. 503, 462 S.E.2d 163 (1995); Campbell v. Breedlove, 244 Ga. App. 819, 535 S.E.2d 308 (2000).

When there is no evidence of fraudulent misrepresentations by a doctor in obtaining the consent of a patient for a laparoscopy and the evidence is undisputed that a dilation and curettage surgical procedure is often performed as a preliminary to a laparoscopy, the consent of the patient to both operations is conclusively presumed to be a valid consent. Cole v. Jordan, 161 Ga. App. 409, 288 S.E.2d 260 (1982).

- Question of fact precluding summary judgment existed as to whether physician acted in good faith when accepting the authority of county Department of Family and Children Services to consent to heart catheter procedure of child after hearing father's objection to procedure. Bendiburg v. Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989), modified on other grounds, 909 F.2d 463 (11th Cir. 1990), cert. denied, 500 U.S. 932, 111 S. Ct. 2053, 114 L. Ed. 2d 459 (1991).

Presumption of valid consent is created when such consent is in writing. Fox v. Cohen, 160 Ga. App. 270, 287 S.E.2d 272 (1981).

- If the consent form is inadequate, or if there is no written consent shown, summary judgment for physician may be obtained by establishing that plaintiff-patient knew, from any source, the general course of treatment to be undertaken. Parr v. Palmyra Park Hosp., 139 Ga. App. 457, 228 S.E.2d 596 (1976).

- When language in a consent form was ambiguous as to whether consent was given only to additional procedures which were both necessary and appropriate or which were either necessary or appropriate, and, whether if two different classes of additional procedures existed, within which class the procedure performed on plaintiff existed, because of the inequality of the bargaining position between defendant physicians and plaintiff, the ambiguity was construed against the defendants as encompassing only additional procedures which were both necessary and appropriate when rendered. Harris v. Tatum, 216 Ga. App. 607, 455 S.E.2d 124 (1995).

Doctrine of res ipsa loquitur inapplicable in malpractice suits. Young v. Yarn, 136 Ga. App. 737, 222 S.E.2d 113 (1975).

- Patient's consent to a general course of treatment does not preclude an action for battery for the treatment actually undertaken. Specifically, pursuant to the terms of the consent form at issue, the patient's consent to an "excision biopsy" of a lesion on the patient's face did not grant the doctor general authority for any other surgical treatment of the lesion. Johnson v. Srivastava, 199 Ga. App. 696, 405 S.E.2d 725 (1991).

- Even if evidence existed that a doctor altered medical records pertaining to a surgical procedure after the procedure was completed, that evidence could not support a claim that the patient was fraudulently induced to sign the consent form before the surgery. Long v. Natarajan, 291 Ga. App. 814, 662 S.E.2d 876 (2008).

- Although O.C.G.A. § 43-34-106 does not require a physician to include notice of the use of a physician's assistant on a surgical consent form, it is not unreasonable to expect that this type of information would be included. Gillis v. Cardio TVP Surgical Assocs., P.C., 239 Ga. App. 350, 520 S.E.2d 767 (1999).

- Court denied a patient's motion for reconsideration of the denial of a motion for summary judgment as to a battery claim that the patient asserted against a doctor because, by the patient's own admission, the evidence that the patient asserted upon reconsideration, as well as the patient's argument that under O.C.G.A. § 31-9-6(d) the patient could not consent to an unlawful surgery, could and should have been asserted in the patient's summary judgment motion. Otero v. Vito, 144 Fed. Appx. 762 (M.D. Ga. Nov. 13, 2006).

Cited in Kenney v. Piedmont Hosp., 136 Ga. App. 660, 222 S.E.2d 162 (1975); Winfrey v. Citizens & S. Nat'l Bank, 149 Ga. App. 488, 254 S.E.2d 725 (1979); Butler v. Brown, 162 Ga. App. 376, 290 S.E.2d 293 (1982); Hyles v. Cockrill, 169 Ga. App. 132, 312 S.E.2d 124 (1983); Verre v. Allen, 175 Ga. App. 749, 334 S.E.2d 350 (1985); Anglin v. Grisamore, 192 Ga. App. 704, 386 S.E.2d 52 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 59 Am. Jur. 2d, Parent and Child, § 65.

- 67A C.J.S., Parent and Child, §§ 38, 40, 41, 46 et seq.

- Mental competency of patient to consent to surgical operation or medical treatment, 25 A.L.R.3d 1439.

Necessity and sufficiency of expert evidence to establish existence and extent of physician's duty to inform patient of risks of proposed treatment, 52 A.L.R.3d 1084.

Malpractice: physician's duty to inform patient of nature and hazards of radiation or x-ray treatments under the doctrine of informed consent, 69 A.L.R.3d 1223.

Modern status of views as to general measure of physician's duty to inform patient of risks of proposed treatment, 88 A.L.R.3d 1008.

Malpractice: questions of consent in connection with treatment of genital or urinary organs, 89 A.L.R.3d 32.

Malpractice: physician's duty, under informed consent doctrine, to obtain patient's consent to treatment in pregnancy or childbirth cases, 89 A.L.R.4th 799.

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