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Informed Consent to Medical Care

Posted by attorney Joseph Brophy

The principle of informed consent to medical care has its origins in the law of battery. One who touches another without consent must answer in damages for all injuries that are caused by the contact. A physician must have the consent of his patient to render medical, and in particular surgical treatment, except in unusual circumstances. Medical treatment without any consent at all is very unusual, and it generally involves either an extreme emergency, or a mistake on the part of the doctor in rendering treatment to the wrong part of the body. In the first case the doctor is generally not liable. In the second case, the doctor is almost always liable.

The patient’s right to choose whether to undergo treatment and what treatment to undergo is so important that the physician has a legal duty to provide such information to the patient as he or she will reasonably require in order to make an informed choice. A consent given without a reasonable understanding of the available choices is not truly voluntary and is therefore no consent at all. Thus, a patient who is harmed by a procedure to which he or she did not give an informed consent may collect damages for injuries caused by such procedure.

Most, but not all medical centers require patients to sign a consent form for any type of medical treatment. Federal agencies require detailed consent forms as a condition of funding for certain research. But the form is not the consent; it is merely proof of the consent. Signing a form does not prevent a patient from making a claim of lack of informed consent. Nor does the absence of a signed form prove that informed consent was not given.

While the specific formulations of the law of informed consent vary from state to state, the essential elements are:

  1. Failure of the physician to make a disclosure of the benefits, risks, and alternatives to the procedure that was reasonable under the circumstances

  2. In some jurisdictions, a showing that a reasonable patient, if informed of the benefits, risks, and alternatives to the procedure would have refused the procedure, and

  3. Injuries caused by the procedure.

In practice, very few informed consent claims are brought and few of those are successful. Often, what the doctor told the patient becomes a “swearing contest." Doctors usually win those, especially when there is a signed consent in the file or notes of the conversation in the medical record. Even if the patient’s version of the consent is believed, the patient usually bears the further burden of persuading the jury not that he or she would have refused the treatment, but that, if properly informed, a hypothetical “reasonable person" would have refused the treatment.

As example of how the law of informed consent might be applied, assume that paralysis is a risk of brain surgery that was not disclosed. The patient consented, and was paralyzed after the surgery. That seems like a strong case until the additional fact is considered that without the brain surgery, the patient would certainly have died in hours from a burst aneurysm. Where the only alternative to the operation was death, a reasonable person would most likely accept a risk of paralysis in exchange for a chance for a cure. If without the brain surgery the patient would merely have lost the hearing of one ear, a reasonable person might decide that a risk of paralysis was out of proportion to the benefit of preserving the hearing.

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