ACTIONS, PROCESS, AND SERVICE OF PROCESS
ACTIONS FOR MEDICAL INJURY
507-C:2 Burden of Proof.
I. In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence consisting of the expert testimony of a competent witness or witnesses:
(a) The standard of acceptable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
II. Without limiting the applicability of paragraph I of this section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person:
(a) The plaintiff shall have the burden of proving by affirmative evidence, consisting of expert testimony of a competent witness or witnesses, that the treatment, procedure or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure or surgery.
(b) In determining whether the plaintiff has satisfied the requirements of subparagraph (a) of this paragraph, the following matters shall also be considered as material issues:
(1) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person or person giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure or surgery;
(2) Whether the injured person or the person giving consent on his behalf knew of the risks or hazard inherent in such treatment, procedure or surgery;
(3) Whether the injured party would have undergone the treatment, procedure or surgery regardless of the risk involved or whether he did not wish to be informed thereof;
(4) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person's condition.
III. In any action for medical injury, the doctrine of res ipsa loquitur shall not apply.
Source. 1977, 417:22, eff. Sept. 3, 1977.