Daniels v. United States, 704 F.2d 587, 591 (11th Cir. 1983). Accord, Freeman v. United States, 704 F.2d 154, 157-58 (5th Cir. 1983); Petty v. United States, 679 F.2d 719, 727 (8th Cir. 1982). The legal standard in Florida governing plaintiff's claim of lack of informed consent is set forth in the "Florida Medical Consent Law", codified at § 768.46, Florida Statutes (1977).
But this Court has previously held that no such nationwide standard of liability exists. Freeman v. United States, 704 F.2d 154, 157 (5th Cir. 1983). The mere directive that the Secretary of Health create an informed consent form and procedures did not establish a standard by which the sufficiency of the inform consent was to be evaluated.
The government contends that Claxton does not support Petty's case. First, the plaintiff in Claxton sustained Guillain-Barre Syndrome (GBS). Because the government has conceded liability in GBS cases, see, e.g., Overton v. United States, 619 F.2d 1299 (8th Cir. 1980), the court's discussion of the adequacy of the warning was dictum. Second, the government contends that Claxton is undermined by subsequent Fifth Circuit rulings to the contrary in Daniels v. United States, 704 F.2d 587 (11th Cir. 1983) (warning was reasonable under Alabama law) and in Freeman v. United States, 704 F.2d 154 (5th cir. 1983) (risk of adhesive capsilitus not foreseeable enough to require a warning). Both of these cases are distinguishable and not persuasive.