Informed Consent in Oregon: What ORS 677.097 Requires

A clipboard arrives, a form is signed, and the procedure goes ahead. That form is not the whole of what Oregon law asks of a physician beforehand.

ORS 677.097 describes a conversation rather than a document: an explanation the physician gives, and then a question the physician asks. Understanding the difference matters, because a claim built on what a patient was told is not the same claim as one built on how the treatment itself was performed.

What ORS 677.097 requires a physician to explain

The statute is short, and its structure is the whole point. Subsection (1) provides that "[i]n order to obtain the informed consent of a patient, a physician or physician associate shall explain the following": the procedure or treatment "[i]n general terms"; "[t]hat there may be alternative procedures or methods of treatment, if any"; and "[t]hat there are risks, if any, to the procedure or treatment."¹

Read closely, that first step is general by design. The physician describes the procedure in general terms and tells the patient that alternatives and risks exist — that they are there, in the plural, without itemizing them.

The second step: the physician has to ask

The detail comes in subsection (2). "After giving the explanation specified in subsection (1) of this section, the physician or physician associate shall ask the patient if the patient wants a more detailed explanation."¹

That makes the duty two-tiered. The general explanation is the physician's to give. The detailed one is triggered by the patient: "If the patient requests further explanation, the physician or physician associate shall disclose in substantial detail the procedure, the viable alternatives and the material risks unless to do so would be materially detrimental to the patient."¹

Three things sit inside that sentence. The detailed disclosure covers three subjects — the procedure, the viable alternatives, and the material risks. It is owed "in substantial detail." And it carries an exception, for disclosure that "would be materially detrimental to the patient." The statute then says how that judgment is to be made: in determining that further explanation would be materially detrimental, the physician "shall give due consideration to the standards of practice of reasonable medical or podiatric practitioners in the same or a similar community under the same or similar circumstances."¹

The two tiers are easy to collapse into one, and the shorthand — that an Oregon doctor must disclose every material risk before any procedure — overstates the first step. Under the statute's terms, disclosure "in substantial detail" of the material risks is what follows the patient's request for further explanation.

ORS 677.097 names "a physician or physician associate." Its companion section is written the same way: ORS 677.095(1) speaks of "[a] physician licensed to practice medicine or podiatry by the Oregon Medical Board," and subsection (2) of "[a] physician associate licensed to practice medicine by the board."² Those are the terms the two sections use. ORS 677.097 dates to 1977, and the source note printed with the statute records amendments through 2024.¹

How an informed-consent claim differs from a negligence claim

This is the distinction that does the real work, and a 1971 Oregon Supreme Court decision shows the two theories running side by side inside a single lawsuit.

In Getchell v. Mansfield, decided in 1971, a patient fell and hurt her shoulder. A general practitioner diagnosed a shoulder separation and sent her to an orthopedist, who "performed the surgery by joining the separated shoulder parts with wires." The wires later broke, and she required further surgery.³

Her complaint carried both kinds of allegation. The ordinary negligence charges concerned the treatment: the case against the orthopedist "went to the jury only on charges that after surgery he failed to properly immobilize plaintiff's shoulder and that he improperly instructed the plaintiff about exercises to be performed." Separately, the trial court "struck from the complaint allegations that the defendants were negligent in failing to advise plaintiff of the risks involved in correcting her condition by joining the parts with wires and in failing to advise her of alternative methods of treatment."³

The court was candid that the label is imperfect: "The concept involved has been labeled, perhaps unwisely, 'informed consent.'" It also recorded its earlier holding that although surgery without a consent based on full knowledge by the patient might amount to a technical battery, "such conduct also can be pleaded and proved as negligence."³ In Oregon, then, this is a theory that can be framed and tried as negligence.

What a failure-to-advise claim turns on

Getchell set out what such a claim requires, and what it does not. The court held "that a plaintiff who alleges that a physician failed to warn him of material risks inherent in his treatment, and to advise him of feasible alternatives, need not produce expert medical testimony that it is the custom of physicians in the same or similar localities to give such warnings in comparable cases." The duty instead "exists as a matter of law if (1) the risk of injury inherent in the treatment is material; (2) there are feasible alternative courses available; and (3) the plaintiff can be advised of the risks and alternatives without detriment to his well-being."³

The court also set a limit on how far that duty reaches: "We do not find it necessary that a physician tell the patient all the possible risks and dangers of the proposed procedures. A correct test would be to require the disclosure of all the 'material' risks, results that might well occur, not dangers that are extremely remote; risks that are of serious consequences, not unexpected results that are of little consequence."³

Expert testimony does not vanish from the case. It moves. "In most cases, expert medical testimony will be necessary to establish each of the three elements," the court wrote, because materiality, feasibility and detriment are medical questions.³ That is exactly where the claim in Getchell stopped. The court found the record contained no medical testimony that the risk of the wires breaking and consequent permanent disability "was a material risk for the type of surgery performed or that 'taping' the shoulder and not performing surgery was a feasible alternative under the circumstances," and affirmed on that basis.³

The negligence side, and who may prove it

The treatment claim is measured against a different yardstick. ORS 677.095(1) sets the duty "to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."²

The Oregon Supreme Court has observed that "[i]n most medical malpractice cases, expert testimony is required to establish the standard of care," citing Getchell for the point.⁴ In Trees v. Ordonez, decided in 2013, the question was who may supply it. The court rejected "a rule requiring expert testimony from a medical doctor to survive a motion for a directed verdict on the issue of negligence in a medical malpractice case," concluding that the plaintiff "introduced sufficient evidence from an expert witness who is not a medical doctor to present a jury question on at least one aspect of her negligence claim" — testimony from a biomechanical engineer about the cervical plate a neurosurgeon had installed. What governs, the court said, is "whether the expert has sufficient knowledge of the methods used by the practitioner in the circumstances to testify regarding the standard of care."⁴

Two questions, not one

Put side by side, the two inquiries point at different evidence. The negligence question asks what an ordinarily careful physician would have done — in the operating room, in the clinic, in the follow-up. The informed-consent question asks what the patient was told beforehand: whether the procedure was explained in general terms, whether the patient was told that alternatives and risks existed, and whether the patient was asked if more detail was wanted.

A set of facts can raise one question, the other, or both, and they are proved with different testimony. That is why an Oregon attorney reading a medical chart and a signed consent form is looking at two separate things: how the care was delivered, and what was said before it began.

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at 971-317-6436 for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.

Footnotes

1. ORS 677.097 — Procedure to obtain informed consent of patient (2025 edition, Chapter 677). https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩ ↩² ↩³ ↩⁴ ↩⁵

2. ORS 677.095 — Duty of care (2025 edition, Chapter 677). https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩ ↩²

3. Getchell v. Mansfield, 260 Or 174 (1971) — opinion text, Oregon Reports, digitised by the Caselaw Access Project. https://static.case.law/or/260/cases/0174-01.json ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶ ↩⁷

4. Trees v. Ordonez, 354 Or 197 (2013) — opinion text, Oregon Reports, digitised by the Caselaw Access Project. https://static.case.law/or/354/cases/0197-01.json ↩ ↩²