Smith v. Weaver’s Empirical Analysis

Citation profile

22 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 22 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The “professional” theory holds that the duty is measured by the standard of the reasonable medical practitioner under the same or similar circumstances, and must be determined by expert medical testimony establishing the prevailing standard and the defendant practitioner’s departure therefrom. On the other hand, the “material risk” theory holds the duty to disclose is measured by the patient’s need for information to balance the probable risks against the probable benefits in making the decision to either undergo or forgo the treatment proposed. Although under this theory expert medical testimony may be necessary to establish the undisclosed risk as a known danger of the procedure, expert testimony is not required to establish the physician’s duty to disclose, and the fact finder can decide, without the aid of a medical expert, whether a reasonable person in the patient’s position would have considered the risk significant in making his or her decision.”

   2 later decisions quote this exact passage
   e.g. Eccleston v. Chait · Curran v. Buser

2. “Informed consent shall mean consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Failure to obtain informed consent shall include failure to obtain any express or implied consent for any operation, treatment, or procedure in a case in which a reasonably prudent health care provider in the community or similar communities would have obtained an express or implied consent for such operation, treatment, or procedure under similar circumstances.”

   1 later decision quote this exact passage
   e.g. Curran v. Buser

3. “Before the plaintiff may recover any damages in any action based on failure to obtain informed consent, it shall be established by a preponderance of the evidence that a reasonably prudent person in the plaintiff’s position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages claimed.”

   1 later decision quote this exact passage · from the dissent
   e.g. Jones v. Malloy