DISSENTING:
The majority cites to Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987), Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky. Ct. App. 1992), and Henson v. Klein, 319 S.W.3d 413, 425 (Ky. 2010) for the proposition that jury instructions should contain statutorily imposed duties. I agree; however, those cases are distinguishable.
In Wemyss, the issue was whether the instructions in a motor vehicle accident ease should include the duty to wear a seatbelt. The Court held that, because there was no statutory duty to wear a seatbelt, such an instruction was not appropriate. 729 S.W.2d at 180-81. In McKee, the Court of Appeals held that giving an instruction regarding the failure to test for PKU in an infant was appropriate because KRS 214.155 specifically required hospitals to administer that test. *220834 S.W.2d at 722. In Henson, a case involving a collision between two personal watercrafts, the primary issue before the Court was how the general duty of care, the statutory duty of care to “operate a motorboat or personal watercraft on public waters according to the ‘Rules of the Road,’ ” and the sudden emergency doctrine interact. The Court determined that an instruction incorporating a statutory duty, even a duty as amorphous as operating according to the “Rules of the Road,” was appropriate. Id. at 425.
All three cases have a common theme— if there is a statutory duty and the evidence supports a violation of that duty, then instruction regarding the duty may be appropriate. The majority contends that KRS 304.40-320 creates a statutory duty to “inform patients of medical risks” and, if.the evidence supports it, the jury must be instructed on all of the elements contained in the statute. In support of this contention, the majority states that KRS 304.40-320 was enacted as “an amplification of the general duty” to “inform patients of medical risks” recognized by our predecessor Court in Holton v. Pfingst, 534 S.W.2d 786 (Ky. 1975). I disagree with this statutory interpretation.
In Holton, the Court noted how other jurisdictions address the issue of informed consent.
Some courts categorically require the patient to produce expert testimony as to what disclosure of risks or hazards should be made. Other courts hold that experts are unnecessary and that lay witness testimony can establish a sub-missible case of failure to disclose a risk or hazard of treatment which a physician knew or should have known. Other courts have ordinarily required expert evidence by the plaintiff on the issue of the extent of disclosure required except in those instances where the court determined that the necessity of disclosure of the risk involved was ‘too clear to require expert medical testimony.’ Some of the text discussions although unsupported by decided cases have advocated a shift of burden approach whereby if the patient produces evidence of a failure to disclose a particular risk or hazard, then the burden shifts to the physician to excuse the failure by proof of professional standards which would seek to establish disclosure was either not required or was regarded as not in the best interest of the patient under the peculiar fact situation.
Id. at 788-89 (citations omitted). After outlining, the preceding, the Court found that there was “no evidence, lay or expert, that [the physician] failed to disclose that which he knew or should have known.” Id. at 789. Therefore, the Holton Court did not state how courts in the Commonwealth should address the issue of informed consent.
The majority infers from the timing of the passage of KRS 304.40-320 that the legislature was imposing an amplified duty on physicians regarding what they must do in order to obtain informed consent. However, because Holton did not clarify how courts were to treat the issue of informed consent, and arguably muddied the waters, it is as likely, if not more likely, that the legislature was not imposing a duty on physicians but rather clarifying how the concept of informed consent fits within the standard of care applicable in nearly every medical negligence case.
KRS 304.40-320 provides as follows:
In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an, element, the claimant’s informed consent shall be deemed to have been given where:
*221(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and
(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures;
(3) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent.
The introductory language of the statute is not language that creates a freestanding statutory duty. Unlike the statutes in McKee and Henson, KRS 304.40-320 does not require hospitals, physicians, or other health care providers to do anything, let alone obtain informed consent. It simply states that, if informed consent is an element of a claim, -health care providers who comply with the statutory provisions shall be deemed to have obtained informed consent. Thus, the better interpretation of the statute is that it creates a presumption that, if a hospital, physician, or other health care provider complies with its provisions, informed consent was obtained and liability will not attach.
I find further support for the interpretation that KRS 304.40-320 creates a presumption rather than a duty in this Court’s interpretation of KRS 186.640 in Rentsch-ler v. Lewis, 33 S.W.3d 518, 518 (Ky. 2000). KRS 186.640 provides that:
Any driver involved in any accident resulting in any damage whatever to person or to property who is ineligible to procure an operator’s license, or being eligible therefor has failed to procure a license, or whose license has been canceled, suspended or revoked prior to the time of the accident, shall be deemed prima facie negligent in causing or contributing to cause the accident.
(Emphasis added.) This Court stated that KRS 186.640 created a rebuttable presumption of liability and, if a defendant overcame that presumption by showing he was not at fault, liability would not attach. Rentschler at 520. Similarly, the shall be deemed language in KRS 340.40-320 creates a rebuttable presumption of non-liability; it does not create a duty.
In Wemyss, this Court held that, absent a statutory duty, expansion of jury instructions beyond the general standard of care is inappropriate. Section (1) of KRS 304.40-320 sets forth the general standard of care, and I agree with the majority that it provides appropriate language for an instruction when informed consent is an issue and there is evidence to support the giving of the instruction. See Oghia v. Hollan, 363 S.W.3d 30 (Ky. Ct. App. 2012). However, none of the sections of KRS 304.40-320 create or impose any duty to obtain informed consent. As the Court held in Wemyss “where there is no statutory duty, a proper instruction ... will state the general duty to exercise ordinary care ... leaving it to the jury to decide from the evidence whether the” failure to exercise that care was a substantial factor contributing to the plaintiffs injuries. Id. at 181. In this case, there is no statutory duty to obtain informed consent, and the trial court was only required to give a *222general instruction on the standard of care with regard to informed consent.
We have held on a number of occasions that “[i]t is ‘never proper to instruct the jury as. to presumptions of law or of fact.’ ” Rentschler, 33 S.W.3d at 520, citing J. Palmore, Kentucky Instructions to Juries (Civil) § 13.11g, at 16 (4th ed. Anderson 1989); see also Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992). The majority’s holding that the language in KRS 304.40-320(2) is mandated in cases involving informed consent does just that.
Finally, I note that the legislature passed KRS 304.40-320 in 1976. We have not, in the past thirty-nine years, interpreted this statute as imposing the expanded duty the majority now finds. I am not convinced by the majority’s opinion that we should impose that expanded duty, particularly when there is no clear statutory mandate to do so. As stated above, and as I stated in Oghia, when the evidence dictates, the trial court shall issue two separate duty-of-care jury instructions; however, the trial court should not be required to include the non-existent duty the majority finds in KRS 304.40-320(2).
For the foregoing reasons, I would affirm the Court of Appeals.