Should a Doctor Inform His Patients Regarding His Use of Drugs Which Might Adversely Affect His Performance ?
In Albany Urology Clinic v. Cleveland, 272 Ga. 296, 299 (1) (528 S.E.2d 777) (2000) the issue was not whether, as the special concurrence says, a failure to disclose the risks of a medical procedure would support a claim for medical negligence.
Instead, the issue was whether a physician had a duty to disclose to his patients factors of his life, namely his drug use, which might adversely affect the physician's performance.
Even though the Court cited Young v. Yarn, it did not decide the issue of whether a physician has a common law duty to disclose the risks associated with a particular medical treatment or procedure.
In fact, Albany Urology dealt specifically with the applicability of O.C.G.A. 31-9-6.1, requiring informed consent in cases involving surgery performed while a patient is under general anesthesia.
While reasonable minds may differ as to whether the language in Albany Urology presents an obstacle to this court correcting its own error in Young v. Yarn and its progeny, there is little room for disagreement that the mention of the common law principle of informed consent in both Supreme Court cases was dicta.
Since the Supreme Court's use or mention of our cases was merely dicta, we believe this court is within its authority to overrule the cases we decided which changed the common law principle of informed consent in this state.