State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_90 > GS_90-21_13

§ 90‑21.13.  Informedconsent to health care treatment or procedure.

(a)        No recovery shallbe allowed against any health care provider upon the grounds that the healthcare treatment was rendered without the informed consent of the patient orother person authorized to give consent for the patient where:

(1)        The action of thehealth care provider in obtaining the consent of the patient or other personauthorized to give consent for the patient was in accordance with the standardsof practice among members of the same health care profession with similartraining and experience situated in the same or similar communities; and

(2)        A reasonable person,from the information provided by the health care provider under thecircumstances, would have a general understanding of the procedures ortreatments and of the usual and most frequent risks and hazards inherent in theproposed procedures or treatments which are recognized and followed by otherhealth care providers engaged in the same field of practice in the same orsimilar communities; or

(3)        A reasonable person,under all the surrounding circumstances, would have undergone such treatment orprocedure had he been advised by the health care provider in accordance withthe provisions of subdivisions (1) and (2) of this subsection.

(b)        A consent which isevidenced in writing and which meets the foregoing standards, and which issigned by the patient or other authorized person, shall be presumed to be avalid consent. This presumption, however, may be subject to rebuttal only uponproof that such consent was obtained by fraud, deception or misrepresentationof a material fact. A consent that meets the foregoing standards, that is givenby a patient, or other authorized person, who under all the surroundingcircumstances has capacity to make and communicate health care decisions, is avalid consent.

(c)        The followingpersons, in the order indicated, are authorized to consent to medical treatmenton behalf of a patient who is comatose or otherwise lacks capacity to make orcommunicate health care decisions:

(1)        A guardian of thepatient's person, or a general guardian with powers over the patient's person,appointed by a court of competent jurisdiction pursuant to Article 5 of Chapter35A of the General Statutes; provided that, if the patient has a health careagent appointed pursuant to a valid health care power of attorney, the healthcare agent shall have the right to exercise the authority to the extent grantedin the health care power of attorney and to the extent provided in G.S. 32A‑19(a)unless the Clerk has suspended the authority of that health care agent inaccordance with G.S. 35A‑1208(a);

(2)        A health care agentappointed pursuant to a valid health care power of attorney, to the extent ofthe authority granted;

(3)        An attorney‑in‑fact,with powers to make health care decisions for the patient, appointed by thepatient pursuant to Article 1 or Article 2 of Chapter 32A of the GeneralStatutes, to the extent of the authority granted;

(4)        The patient'sspouse;

(5)        A majority of thepatient's reasonably available parents and children who are at least 18 yearsof age;

(6)        A majority of thepatient's reasonably available siblings who are at least 18 years of age; or

(7)        An individual whohas an established relationship with the patient, who is acting in good faithon behalf of the patient, and who can reliably convey the patient's wishes.

(c1)      If none of thepersons listed under subsection (c) of this section is reasonably available,then the patient's attending physician, in the attending physician'sdiscretion, may provide health care treatment without the consent of thepatient or other person authorized to consent for the patient if there isconfirmation by a physician other than the patient's attending physician of thepatient's condition and the necessity for treatment; provided, however, thatconfirmation of the patient's condition and the necessity for treatment are notrequired if the delay in obtaining the confirmation would endanger the life orseriously worsen the condition of the patient.

(d)        No action may bemaintained against any health care provider upon any guarantee, warranty orassurance as to the result of any medical, surgical or diagnostic procedure ortreatment unless the guarantee, warranty or assurance, or some note ormemorandum thereof, shall be in writing and signed by the provider or by someother person authorized to act for or on behalf of such provider.

(e)        In the event of anyconflict between the provisions of this section and those of G.S. 35A‑1245,90‑21.17, and 90‑322, Articles 1A and 19 of Chapter 90, and Article3 of Chapter 122C of the General Statutes, the provisions of those sections andArticles shall control and continue in full force and effect.  (1975, 2nd Sess., c. 977, s.4; 2003‑13, s. 5; 2007‑502, s. 13; 2008‑187, s. 37(b).)