H-323                _______________________________________________

                                                     HOUSE BILL NO. 13

                        _______________________________________________

State of Washington                              49th Legislature                              1985 Regular Session

By Representatives Dellwo and Padden

Prefiled with Chief Clerk 1/7/85.  Read first time 1/14/85 and referred to Committee on Judiciary.

AN ACT Relating to actions for injuries resulting from health care; and amending RCW 7.70.050 and 7.70.060.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

        Sec. 1.  Section 10, chapter 56, Laws of 1975-'76 2nd ex. sess. and RCW 7.70.050 are each amended to read as follows:

          (1) The following shall be necessary elements of proof that injury resulted from health care in a civil negligence case or arbitration involving the issue of the alleged breach of the duty to secure an informed consent by a patient or his representatives against a health care provider:

          (a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;

          (b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts;

          (c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts;

          (d) That the treatment in question proximately caused injury to the patient.

          (2) Under the provisions of this section a fact is defined as or considered to be a material fact, if a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment.

          (3) Material facts under the provisions of this section which must be established by expert testimony shall be either:

          (a) The nature and character of the treatment proposed and administered;

          (b) The anticipated results of the treatment proposed and administered;

          (c) The recognized possible alternative forms of treatment; or

          (d) The recognized serious possible risks, complications, side effects, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including nontreatment.

          (4) If a recognized health care emergency exists and the patient is not legally competent to give an informed consent and/or a person legally authorized to consent on behalf of the patient is not readily available, his consent to required treatment will be implied.

        Sec. 2.  Section 11, chapter 56, Laws of 1975-'76 2nd ex. sess. and RCW 7.70.060 are each amended to read as follows:

          If a patient while legally competent, or his representative if he is not competent, signs a consent form which sets forth the following, the signed consent form shall constitute prima facie evidence that the patient gave his informed consent to the treatment administered and the patient has the burden of rebutting this by a preponderance of the evidence:

          (1) A description, in language the patient could reasonably be expected to understand, of:

          (a) The nature and character of the proposed treatment;

          (b) The anticipated results of the proposed treatment;

          (c) The recognized possible alternative forms of treatment; and

          (d) The recognized serious possible risks, complications, side effects, and anticipated benefits involved in the treatment and in the recognized possible alternative forms of treatment, including nontreatment;

          (2) Or as an alternative, a statement that the patient elects not to be informed of the elements set forth in subsection (1) of this section.

          Failure to use a form shall not be admissible as evidence of failure to obtain informed consent.