Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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Informed consent is the permission a physician must obtain prior to treating a patient. Failure to obtain informed consent could be grounds for a medical malpractice suit. Informed consent involves more than simply saying “yes” or “no” to a procedure or treatment. When a patient gives informed consent, it means that the patient has been presented with the appropriate medical information relevant to their situation, including risks, benefits and the likelihood of success or failure. If a patient is presented with the appropriate information, understands the information, and decides to give a medical professional permission to take action, that patient has given informed consent.

Informed Consent and Appropriate Information

A doctor should provide a patient with appropriate information when obtaining informed consent. But what does this entail? Certainly, it is not incumbent on a medical professional to disclose every possible side effect, potential outcome or complication connected to a given procedure. Such a standard would be impossible to uphold. Instead, courts generally look at two factors when deciding whether a professional provided a patient with the appropriate information. The importance of these questions will depend on the jurisdiction in which the potential case will be filed.

First, courts look at the local custom to determine what information other local doctors provide in the same situation. Second, courts attempt to judge whether the information actually provided was sufficient for a patient to make a decision and offer informed consent.

The first question deals with the local standard of care. Essentially, the local standard of care is the level of care provided by most doctors in a given area, since the standard of care for a doctor in Orange County, CA is different from that of a doctor in Orange County, NY. Information provided to a patient before treatment is part of the standard of care.

Since medical malpractice lawsuits generally require expert witness testimony, a potential plaintiff would need to find a reputable physician in the same area that would be willing to provide sworn testimony stating that the local standard of care was violated. In such a case, the doctor would need to testify that a treating physician did not provide a piece of information that most or all other doctors in the area would consider essential. In response, the doctor defending a suit will typically hire his own expert to testify that the possibility of injury was so remote that the disclosure was unnecessary.

The second question deals with the actual decision making process. Plaintiffs in informed consent cases usually claim that if they had known Risk X before their procedure, they would not have consented to the procedure and they would not have been injured. A court will ask whether a normal patient, with the same medical history and current health status as the plaintiff, would have changed his mind about the treatment if the undisclosed risk were disclosed. In states following this standard, a doctor is usually also required to inform a patient of realistic alternative treatments, even if the doctor only recommends one treatment.

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When Informed Consent Is Not Required

In very limited situations, informed consent is not required. Some examples include emergency situations and situations involving patients incapable of providing informed consent due to some type of mental disability. It is also important to note that informed consent is extremely specific, so if a doctor obtains informed consent to perform surgery on a patient’s right arm, but then performs surgery on the left, there could be an informed consent issue. However, if a doctor is performing a procedure for which informed consent was obtained and finds another, different life-threatening problem during the procedure, any action taken by the doctor to correct the life-threatening issues will generally not be subject to the rules of informed consent.

For better or worse, the specter of a lawsuit often sits squarely between doctor and patient. The concept of informed consent, while not new, has evolved into a major area of interest in medical malpractice cases over the last 25 years. Medical malpractice cases, of which informed consent cases are one specific sub-type, are very jurisdiction-specific. If an injured patient feels that he has a possible informed consent case, a local attorney should be contacted immediately so options can be discussed.