Decisional Capacity in New York Malpractice Cases

Stephan M. Carlson, MD, MBA, FAPA · Psychiatric Malpractice

When a patient consents to or refuses psychiatric treatment and a bad outcome follows, the lawsuit often reduces to a single contested fact: did the patient have the capacity to make that choice at the moment it was made? Capacity is not a diagnosis and not a global trait, and an opinion that treats it as either tends to collapse on cross. What New York actually requires for consent New York's informed-consent cause of action is statutory. Public Health Law §2805-d defines lack of informed consent as the failure to disclose the alternatives and reasonably foreseeable risks and benefits a reasonable practitioner would have disclosed, in a way that permits a knowledgeable evaluation; the measu

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