Expert testimony required to prove lack of informed consent


The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances.  Further, in a medical malpractice action based on lack of informed consent, “the plaintiff must prove both the duty and the breach of that duty through expert testimony.  Such expert testimony must show the customary standard of care of physicians in the same practice as that of the defendant doctor.

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOH’s Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment.  In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one.

Li v. Soliman, 165279, June 11, 2011 (En Banc)

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