Informed Consent Doesn’t Preclude a Medical Malpractice Lawsuit

You can’t sign away your right to negligence-free medical care

• What constitutes informed consent?
• What must be disclosed to (shared with) the patient?
• When is consent unnecessary?
• Can I sue a doctor for failing to provide me with informed consent?
• Informed consent lawsuits
• What to do if you’re the victim of medical malpractice

Have you ever been to a doctor’s office or hospital and handed a clipboard of papers, then asked to sign on the dotted line?

We’ve all been there.

Sometimes, these forms allow your medical provider to share your information with an insurance company, or your signature could permit them to share with other providers or your family. Or it could be an informed consent form.

If you’re ill, in pain, or dealing with a serious diagnosis, you might just sign the paper without reading the fine print — and that’s understandable. A lot of it looks like complicated legal and medical jargon, and you probably already know that it’s a procedure you need in order to feel better.

Informed consent is when a patient learns about and understands the benefit, purpose, and risk associated with medical or surgical intervention.

What constitutes informed consent?

1. You receive information about the procedure or treatment.

Your doctor or healthcare provider shares information about how the treatment or procedure will work and what the risks and benefits are. This could either be a conversation, written materials (pamphlets, etc.) or links to online content.

2. You’re informed of risks and benefits, along with alternatives.

Your doctor needs to tell you about the possible risks to the procedure, even the unlikely ones. This should also include risks based on your specific medical history (risks are often greater for some people than others, and this should be addressed). You should be able to weigh those risks against the potential benefits of receiving the procedure. The other alternative is what would happen if you elect not to have the procedure at all.

3. You have the opportunity to ask questions.

You should be able to ask questions about any concerns you have, anything you don’t understand, or any part of the treatment process. The doctor or provider should provide detailed answers to your satisfaction. If they don’t know an answer, they should find out and get back to you before beginning the procedure.

4. You have the opportunity to talk with your family.

Unless time is of the essence (for instance, you’re in the emergency room after an accident and need immediate treatment of an injury), you should have a chance to review the treatment with your family or others who you trust before agreeing to a procedure. You should never feel pressured to make a decision about your medical treatment without the opportunity to explore your options as much as you need to feel comfortable.

5. You feel comfortable with the quality and quantity of information presented.

The information provided to you is sufficient that you feel comfortable that the decision you’re making is in your own best interest and is the best possible choice.

6. The decision is shared with your medical team.

If you have more than 1 physician involved in your care, you’ve had a chance to review the treatment with each doctor as needed, and your treatment team agrees that it’s the best course of action.

Once you’ve made the decision, you’ll be offered a document — either on paper or electronically — that you must sign to indicate consent. If you decide not to participate in the treatment, you might be asked to sign a document indicating that you refused, against the advice of your physician.

Legal and ethical requirements for consent are that the patient has adequate information and understanding. Informed consent doesn’t need to be a document — it can be within a conversation or dialogue.

What must be disclosed to (shared with) the patient?

A 1972 lawsuit (Canterbury v. Spence, 409 U.S. 1064 93 S. Ct. 560 34 L. Ed. 2d 518 1972 U.S.) explains precisely what information must be shared with the patient:

1. The condition being treated;
2. The type of treatment or procedure being suggested;
3. The anticipated results from the treatment or procedure;
4. Any possible alternative treatments; and
5. The possible serious risks, complications, or benefits involved. (This would also include the risks and benefits of non-treatment.)

When is consent unnecessary?

For most planned procedures, you need to provide consent unless it’s a basic and routine procedure. For example, taking vital signs or performing non-invasive tests is practically no risk to the patient and wouldn’t warrant consent.

Here are 2 scenarios when a patient is not required to provide consent:

1. Emergencies

An emergency is when a patient requires immediate treatment in order to prevent death or serious health consequences. If it’s impossible to get consent from either the patient or someone authorized to provide consent on their behalf, the medical team may assume that the patient would want the treatment.

2. Patient is incapable of consent

A patient cannot give consent if they are:

• Unresponsive
• A minor
• Mentally incapacitated

In the case of a minor, the parent or guardian would provide consent. If the person is not a minor but has a legal guardian, that person would consent.

Can I sue a doctor for failing to provide me with informed consent?

Every human body is different, which means the risks for different procedures will vary from person to person. A doctor is not expected to inform the patient about every possible outcome of a treatment. But they should share information about the risks that are important or likely.

In order to file a personal injury lawsuit (which includes medical malpractice), you need to have suffered actual harm or injury. If you weren’t informed of the risks of a procedure, but the procedure was performed and resulted in a positive outcome, you weren’t injured.

To file a lawsuit for failure to provide informed consent, you need to prove:

1. You would have made a different decision about the procedure if you were aware of the risks, and
2. If you hadn’t had the procedure, you would not be experiencing the resulting injury, illness, or harm.

A doctor doesn’t need to warn of every possible risk. The court would look at whether the risk was significant and likely, and whether a competent doctor would have warned of it.

The court might evaluate whether:

• A competent doctor would have warned of this specific risk, and
• A reasonable (average) patient in that circumstance would have chosen not to have the procedure or treatment if they were aware of the risk.

The doctor performed a different procedure than the one for which the patient was informed

Perhaps you provided informed consent for a doctor to perform an appendectomy. But, when the doctor begins the surgical procedure, she discovers a small tumor on your Meckel's diverticulum, which is attached to the small intestine near the appendix. Since she’s already performing an appendectomy, she decides to remove the tumor so that it can be biopsied to find out if it’s cancerous.

You did not consent to the removal of the tumor because the tumor was not detected until the appendectomy was underway.

If the doctor was treating a serious concern that she found during the initial procedure, failure to receive informed consent is likely not malpractice.

The only way a lack of informed consent would lead to a medical malpractice claim in this scenario is if the additional procedure was a mistake.

For instance, this could happen if the doctor began to perform an appendectomy and then thought your spleen was inflamed. Maybe the doctor decided on the spot to remove your spleen but then it turned out that it had been unnecessary. Now you must live without a spleen (which you can, but there will be health effects as a result).

Informed consent lawsuits

Generally, informed consent isn’t a “standalone” lawsuit. It accompanies a claim for medical malpractice, usually for wrongful diagnosis or treatment.

Standards for informed consent lawsuits

The Canterbury case set forth a set of standards that a medical professional should follow:

1. Reasonable physician standard. This standard is based on the customary practice of the “average” practitioner in that particular community. In other words, did the physician do what a similar doctor in a similar circumstance would do?
2. Reasonable patient standard. Based on the patient’s perspective, this standard evaluates how the typical patient in the particular situation would comprehend the information.
3. Subjective standard. This standard is based on the patient’s specific situation and the information the patient would need to know to make an educated decision.

What to do if you’re the victim of medical malpractice

If you believe that your illness or injury was caused by medical malpractice, it’s important to seek the advice of a lawyer. A medical malpractice claim is very complex and whether or not you provided informed consent could be one small part of the larger picture.

It’s also important to note that if you did give your informed consent and a mistake was made, your consent doesn’t remove your right to file a lawsuit.

If your medical professional is responsible for one of these issues, you might have a malpractice claim:

• Failed to diagnose your condition or gave a wrong diagnosis (misdiagnosis)
• Misread or disregarded important lab results
• Conducted an unnecessary surgery
• Made a surgical error or performed on the wrong surgery site
• Gave improper medication or dosage
• Gave poor follow-up care
• Discharged you prematurely

If you need a medical malpractice lawyer, you can use the Enjuris law firm directory to find an attorney near you who is skilled, experienced, and compassionate.