Section 507-E:2 Burden of Proof.
I. In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses:
(a) The standard of reasonable 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, which must include 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 should reasonably 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 competent 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 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 hazards 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 declined 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. The requirements of this section are not satisfied by evidence of loss of opportunity for a substantially better outcome. However, this paragraph shall not bar claims based on evidence that negligent conduct by the defendant medical provider or providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition.
Source. 1986, 227:4, eff. July 1, 1986. 2003, 208:2, eff. June 30, 2003.