Informed consent is not what most patients think it is. Many of our clients originally thought that because they signed a document at the hospital acknowledging that bad things could happen during surgery, they are prevented from filing a lawsuit if those bad things did happen. Sophisticated defense lawyers attempt to use informed consent too broadly to convince juries that surgeries (and other medical procedures) are inherently risky and that medical providers should not be held responsible for any injuries. The reality is that informed consent is much more limited than that. It can be used offensively by victims of medical malpractice, and it can be used in a limited way by medical providers.
What Is Informed Consent?
We have all signed forms given to us from our doctors, acknowledging the risks of a medical procedure. Sometimes these forms are simple, and state that “my doctor has explained to me the risks and benefits of the procedure, and has answered all of my questions.” Sometimes the form lists out specific risks, often containing a comprehensive list up to and including death. Occasionally doctors will give informed consent verbally. Frequently, these two are combined.
Every state has its own rules on informed consent, but in general it requires medical providers to tell their patients about the medical procedure or surgery that they intend to perform. The goal is for patients to understand the important aspects of the medical intervention so that they can make knowing and informed choices. Informed consent typically includes:
- The patient’s condition that requires the medical intervention
- The nature of the intended treatment or procedure
- The likelihood of success or failure
- The risks to the patient if the treatment is unsuccessful
- Alternatives to the procedure or surgery, along with their risks and rates of success
When Must Informed Consent Be Given?
Informed consent is typically required for:
- Mentally competent adults
- Parents/guardians of minors or adults under mental disabilities
- Non-emergency situations
Lack Of Informed Consent As A Separate Count Of Negligence
The states differ on the elements of an informed consent claim. In some states a jury will be able to decide if informed consent was given by focusing on a reasonable patient standard (that is, what a typical patient would want to know about a procedure before going forward with it). In other states, the standard is evaluated from the perspective of a typical health care provider.
If a patient experiences a known and recognized risk while undergoing a medical procedure, that patient may have a claim for failure to provide informed consent if the procedure was not properly explained. Again, the states differ on what the patient needs to prove—it may be that a reasonable patient would not move forward with that particular procedure (the test that most states follow), or that the specific patient would not have opted for the procedure (the minority view).
Using Informed Consent As A Defense To Negligence
One of the tricks in the defense lawyers’ arsenal is to hide behind informed consent when something goes wrong. The argument to the jury is typically that the doctor told the patient about the risks of the procedure, the patient knowingly approved the procedure, and one of those risks manifested. This can be a total defense in a pure informed consent claim.
However, there is one important factor to consider—just because a doctor tells a patient what can go wrong during a procedure, it does not give the doctor the right to perform the procedure negligently. To use an extreme example, a doctor cannot tell a patient before surgery that there is a risk of cutting the wrong artery, then hide behind that “informed consent” if he performs the procedure blindfolded and cuts the wrong artery. Despite informed consent, a medical provider is still required by law to perform medical procedures in accordance with the accepted standards of care.
If you have questions about whether your doctor gave proper informed consent before a medical procedure, contact our medical malpractice attorneys at (440) 252-4399 or online for a free consultation. We can explain the rules on informed consent lawsuits in your state, and tell you whether you have a medical malpractice case.