Medical Malpractice:

Informed Consent

Many types of medical treatment, surgeries, tests, and other procedures involve some level of risk to the patient. Doctors are responsible for providing information about a specific test or procedure to the patient, so that the patient can decide whether or not to undergo the procedure. The practice of providing information to the patient and getting the patient's agreement to undergo the procedure is known as informed consent.

Informed consent is the process whereby fully informed patients can participate in choices about their healthcare. It originates from the legal and ethical right the patient has to direct what happens to his or her body and from the ethical duty of the physician to involve the patient in his or her health care.

Elements of informed consent that doctors should make patients aware of include:

  • The nature of the decision/procedure
  • Reasonable alternatives to the proposed intervention
  • The relevant risks, benefits, and uncertainties related to each alternative
  • Assessment of patient understanding
  • The acceptance of the intervention by the patient

If a doctor fails to get informed consent from a patient and the patient is injured during the medical procedure, the patient may have a medical malpractice claim against the doctor. In cases involving lack of informed consent, the plaintiff's lawyer must show that:

  • The plaintiff's rights were violated by a health care provider's failure to provide this information
  • A reasonable person in the position of the plaintiff, without the benefit of hindsight, would or would not have chosen the treatment at issue had accurate information been given. In other words, had you been informed properly, you wouldn't have consented to the medical treatment and that the medical outcome would have been different.

In order for the patient's consent to be valid, he or she must be considered competent to make the decision and his or her consent must be voluntary. The doctor should make clear to the patient that he or she is participating in a decision, not merely signing a form. It is very important that the patient fully understands what will be happening. If a patient cannot give informed consent due to unconsciousness or mental disability, medical personnel will sometimes ask a court to appoint a guardian or guardian ad litem to make informed consent decisions for the patient. Generally speaking, a parent can give informed consent for his or her minor child.

Under certain circumstances, informed consent may not be necessary. For example, in emergency situations, there may not be time to obtain a patient's informed consent, or the patient may be unconscious and unable to communicate. Likewise, informed consent may be implied or unnecessary if the doctor is performing a relatively simple, non-invasive procedure, such as listening to a heartbeat through a stethoscope.