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NEBRASKA

http://srvwww.unicam.state.ne.us/Laws2005.html

State of Nebraska Statutes

Section 44-2816
Informed consent, defined.

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.

Source:
Laws 1976, LB 434, § 16
Annotations:
A hospital does not have a duty to obtain a patient's informed consent merely because it meets the statutory definition of "health care provider" as that term is used in this section. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997).

The standard of care in a medical malpractice or negligence action based on inadequate information for a patient's consent to an operation, treatment, or procedure is not determined by a defendant physician's personal or customary routine, but, rather, is based on information which physicians ordinarily supply to patients in like circumstances in the locality or similar localities. Under this section, Nebraska has adopted a "professional" theory, under which expert evidence is indispensable to establish what information would ordinarily be provided under the prevailing circumstances by physicians in the relevant and similar localities. Eccleston v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1992).

The language of this statute is adopted for the purposes of malpractice actions against chiropractors. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).

Because of the definition of "informed consent" as outlined in this provision, the Legislature has committed this state to the "professional" theory of the duty of a physician to disclose the risks of a treatment. The professional theory provides that expert evidence is necessary to determine if the physician acted the same as a reasonable medical practitioner under the same or similar circumstances and similar locality. Smith v. Weaver, 225 Neb. 569, 407 N.W.2d 174 (1987).

Section 71-531
Test; written informed consent required; anonymous testing; exemptions.
(1) No person may be tested for the presence of the human immunodeficiency virus infection unless he or she has given written informed consent for the performance of such test. A parent of a minor child or a judicially appointed guardian may give such consent.

(2) The written informed consent shall provide:

(a) An explanation of the test, including the test's purposes, potential uses, and limitations, and the meaning of both positive and negative results;

(b) An explanation of the nature of the human immunodeficiency virus and acquired immunodeficiency syndrome, including the relationship between the test results and the diseases which are part of the syndrome;

(c) An explanation of the procedures to be followed, including the fact that the test is entirely voluntary; and

(d) Information concerning behavioral patterns known to expose a person to the possibility of contracting the human immunodeficiency virus and the methods for minimizing the risk of exposure.

(3) A person seeking a human immunodeficiency virus test shall have the right to remain anonymous. A health care provider shall confidentially refer such person to a site which provides anonymous testing.

(4) This section shall not apply to:

(a) The performance by a health care provider or a health facility of a human immunodeficiency virus test when the health care provider or health facility procures, processes, distributes, or uses a human body part for a purpose specified under the Uniform Anatomical Gift Act and such test is necessary to assure medical acceptability of such gift for the purposes intended;

(b) The performance by a health care provider or a health facility of a human immunodeficiency virus test when such test is performed with the consent and written authorization of the person being tested and such test is for insurance underwriting purposes, written information about the human immunodeficiency virus is provided, including, but not limited to, the identification and reduction of risks, the person is informed of the result of such test, and when the result is positive, the person is referred for posttest counseling;

(c) The performance of a human immunodeficiency virus test by licensed medical personnel of the Department of Correctional Services when the subject of the test is committed to such department. Posttest counseling shall be required for the subject if the test is positive. A person committed to the Department of Correctional Services shall be informed by the department (i) if he or she is being tested for the human immunodeficiency virus, (ii) that education shall be provided to him or her about the human immunodeficiency virus, including, but not limited to, the identification and reduction of risks, and (iii) of the test result and the meaning of such result;

(d) Human immunodeficiency virus home collection kits licensed by the federal Food and Drug Administration; or

(e) The performance of a human immunodeficiency virus test performed pursuant to section 29-2290 or sections 71-507 to 71-513 or 71-514.01 to 71-514.05.

Source:
Laws 1994, LB 819, § 5
Laws 1997, LB 194, § 1
Cross References:
Uniform Anatomical Gift Act,see section 71-4812.


Section 44-2820
Action based on failure to obtain informed consent; burden of proof.

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.

Source:
Laws 1976, LB 434, § 20
Laws 1984, LB 692, § 4
Annotations:
The language of this statute is adopted for the purposes of malpractice actions against chiropractors. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).



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