Informed consent is when doctors must fully inform their patients about the risks involved in any proposed medical procedure or treatment. 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 is 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, but 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.
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.
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.
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. 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.
GCW Can 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. Contact an attorney at any one of our GCW offices for more information.