One affirmative defense used in malpractice cases is conflicting legal duty. For example, a doctor who releases information about a patient's medical condition normally violates the patient's right to confidentiality, subjecting him or her to liability. However, in limited situations, a doctor is legally required to inform others of a patient's medical condition. If a patient suffers from a gunshot wound, the doctor treating him or her must inform the police. A doctor treating a minor who appears to be a victim of child abuse must report the condition to the appropriate authorities.
Consent is perhaps the most frequently asserted affirmative defense in medical malpractice cases.
Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the professional did not go beyond the procedures to which the plaintiff agreed. Doctors and hospitals have tried to protect themselves from malpractice suits by having patients sign consent forms before patients receive treatment. These forms typically include warnings that medicine is an imperfect art and that patients must assume all risks for any procedures. A patient also may sue a doctor or a hospital if a person other than the one named on the consent form performed the procedure. The function of the Texas Medical Disclosure Panel, described above, is to create uniformity in how risk disclosures are made.