Medical Malpractice

What is "Informed Consent" in a Medical Malpractice Case

Updated by David Goguen, J.D., University of San Francisco School of Law
Patients have a legal right to be advised of key risks associated with a proposed medical procedure, and a doctor's failure to adequately inform the patient can form the basis of a medical malpractice case.

Before performing any kind of planned medical procedure or going forward with a course of treatment, a doctor is legally obligated to obtain the patient's "informed consent" to what will be done. Failure to obtain this consent can lead to a viable medical malpractice claim if the patient ends up suffering harm in connection with the underlying treatment. Read on for an explanation of what constitutes "informed consent" and key legal issues that relate to it.

What is "Informed Consent"?

"Informed consent" is actually a process in which, ideally, both the doctor and patient take an active role. It's the doctor's responsibility to provide all essential information to the patient regarding a proposed procedure or treatment, including:

  • a description of the procedure or treatment
  • the purpose of the procedure or treatment, including desired outcome
  • an explanation of the key risks and potential complications involved
  • an explanation of any alternative treatments or procedures (and the risks and complications of those alternatives), and
  • the likelihood of the procedure's success.

The patient should be given the opportunity to ask the doctor follow-up questions, and adequate time to consider the discussion and make a reasoned decision.

The logic behind the requirement of informed consent goes something like this: Without the benefit of all essential information related to a medical procedure, especially the risks, a patient can't make an educated decision about whether to go forward with the proposed treatment.

It should also be noted that having this discussion and signing an informed consent form doesn't mean your doctor (or the hospital) can't be liable for malpractice (more on this later).

Different states assess informed consent differently when it comes to the risks that must be disclosed and discussed. Most states apply one of two tests, asking either:

  • Would most doctors have disclosed the risk? or
  • Would an average patient have made a different decision if advised of the risk?

Talk to an experienced medical malpractice attorney for details on the "informed consent" standard in your state.

Scope of Consent

"Informed consent" isn't a blank check. Your doctor can't do more than what you've consented to. Certainly, a surgeon may take reasonable actions during surgery when something unexpected happens and the patient's health is at risk. But, absent a medical necessity or emergency, your doctor can't presume you would have agreed to a different or additional treatment.

When Informed Consent Isn't Necessary

Informed consent may not be necessary:

  • in emergency situations, especially when the patient is unconscious and treatment is medically necessary in order to save his or her life, and
  • for routine examination procedures, such as reflex testing or listening to the patient's heartbeat with a stethoscope.

Lack of Informed Consent Can Amount to Malpractice

Proving your doctor didn't comply with "informed consent" requirements isn't enough to win a medical malpractice lawsuit. There must be a connection between the lack of informed consent and your injury.

For example, you might need to prove that:

  • with the right information, you wouldn't have consented to the medical treatment that ended up harming you, or
  • that the harm you suffered wasn't disclosed as a known risk of the procedure, even though most doctors would have discussed that particular risk as part of the informed consent process.

Learn more: Do I Have a Medical Malpractice Case?

Questions for Your Attorney

  • Can a doctor legally perform a medical procedure on me if I give only verbal consent?
  • What questions should I ask my doctor before agreeing to undergo a medical procedure?
  • I was injured during a surgical procedure and I don't recall having a discussion about the risks with my doctor. How do I get the records related to my surgery?
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