Medical Malpractice:  Informed Consent

Republished with Permission © 2009 Nolo.

Informed consent is required before a medical procedure or treatment.

Doctors must fully inform their patients about the risks involved in any proposed medical procedure or treatment. In both medical and legal terminology, this is called “informed consent.” If a doctor does not get informed consent from a patient, and the patient is injured, the patient may have grounds to sue the doctor for medical malpractice.

Here are the details of what constitutes informed consent, when it is required, and what exceptions can be made. 

What is Informed Consent?

Most medical procedures or treatments involve some risk. It is the doctor’s responsibility to give the patient information about a particular treatment or procedure so the patient can decide whether to undergo the treatment, procedure, or test. This process of providing essential information to the patient and getting the patient’s agreement to a certain medical procedure or treatment is called informed consent.

Doctors typically require patients to sign a consent form detailing the risks of any given treatment or procedure. But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces.

Whether or not a patient gave his or her informed consent to a treatment is crucial in the law of medical malpractice. If a doctor does not get a patient’s informed consent, and the patient would not have opted for the treatment if he or she knew about the risks, the patient may be able to sue the doctor for medical malpractice.

What Risks Must be Disclosed?

A doctor doesn’t have to tell a patient about every possible thing that might happen as a result of a procedure or treatment, but only those risks that are important. But what is considered important? For the most part, states use one of two standards to determine this.

Would Other Doctors Have Disclosed the Risk?

In states that use this first standard, an injured patient who is suing a doctor must hire a medical expert to testify that other competent doctors would have informed the patient of this risk. The doctor being sued will also hire an expert to testify that a competent doctor would not necessarily have disclosed the risk to the patient.

In the end, the crux of the argument is usually over whether the risk was statistically likely enough to make disclosure worthwhile. Simply because a particular bad result is a remote possibility does not mean it must be disclosed -- even if that bad result comes to pass.

Would a Normal Patient Have Made a Different Decision If Informed of the Risk?

In states using this second standard, courts ask whether a normal patient, with the same medical history and conditions as the plaintiff, would have changed his or her mind about the treatment if the risk was disclosed. Unlike states following the first standard, a doctor must also inform a patient of realistic alternative treatments, even if the doctor only recommends one treatment.

Medical expert testimony is not always required in states following this rule. But if the medical facts are complicated, an injured plaintiff might want to use an expert anyway.

When Informed Consent Is Not Required There are several exceptions to the informed consent rule:

Emergencies. In an emergency, there is no time to describe the risks involved and a physician must act quickly to save a life. A patient cannot sue for lack of informed consent in this situation, even if he or she would not have allowed the treatment.

Emotionally fragile patients. If a doctor knows that the patient is so distressed that he or she will refuse needed treatment, the doctor may not be required to get the patient’s informed consent. For example, if a brain tumor is life threatening, but removal entails frightening risks like paralysis, it may be appropriate for the doctor to be vague in her description of the risks. 

Also, if disclosing too much detail about a necessary procedure may make an already frail patient sick with anxiety, the doctor may be able to withhold some information. A doctor may decide how much to disclose based on the particularities of each patient, but he or she must be able to demonstrate a clear reason why the risks were not disclosed.

What If the Doctor Performs a Different Procedure?

If the doctor performs procedure B after the patient has given informed consent for procedure A, the patient can sue the doctor based on lack of informed consent. This is true even if the procedure was successful. For example, if a doctor operates on the left leg to remove a growth that is on the right leg, the patient may be able to sue for, among other things, lack of informed consent.

A patient only has a claim, however, if the additional or different procedure was a mistake or clearly not necessary.

If a doctor fixes a serious medical problem that she finds while in the middle of another procedure, the patient probably does not have a claim for lack of informed consent. For example, if a patient consents to an operation in which the doctor will fix a heart valve, and in the midst of the operation the doctor finds another serious medical problem with the patient’s heart, the doctor can go ahead and fix the second problem without getting separate informed consent from the patient.

Getting Help

Medical malpractice law is highly regulated by a set of complicated of rules, which vary considerably from state to state. So it is often helpful to get advice or representation from a lawyer.