Lack of Informed Consent & Medical Malpractice Lawsuits
Informed consent is the process by which a patient, after receiving sufficient information about a proposed medical treatment or procedure, voluntarily agrees to proceed. This practice is a cornerstone of modern health care, allowing patients to make choices that align with their individual goals and values. In a typical informed consent discussion, a patient should learn about the nature and purpose of the treatment, potential benefits, possible side effects or complications, any viable alternatives, and the risks of not proceeding at all.
The Purpose and Scope of Informed Consent
The fundamental purpose of informed consent is to safeguard patient autonomy. By receiving all material information, patients are empowered to decide whether a recommended course of treatment is right for them. Material information ordinarily includes a description of the patient’s condition, the intended outcome of the proposed treatment, a realistic appraisal of significant potential risks, the likelihood of success, and a full explanation of any alternatives. For instance, a physician advising surgery for a knee injury would typically explain why surgery is being recommended, any known complications such as infections or blood clots, possible non-surgical interventions, and the potential consequences of declining treatment altogether.
Legal Standards for Disclosure
Courts recognize that physicians need not enumerate every remote possibility. Instead, two primary legal standards define whether a physician’s disclosures were adequate. The professional standard asks whether a reasonably prudent physician in similar circumstances would have revealed the information in question. This approach generally relies on expert medical evidence to establish prevailing customs of disclosure. By contrast, the patient standard, sometimes called the materiality standard, focuses on what a reasonable patient would want to know. Under this standard, if a typical patient in similar circumstances would consider a particular piece of information significant, the physician must disclose it. Many states now favor this patient-centered approach as more protective of patient autonomy.
Proving a Lack of Informed Consent Claim
To establish a lack of informed consent, the patient must show that the physician did not disclose information that a reasonable physician under the professional standard or a reasonable patient under the patient standard would have deemed important. The patient usually must demonstrate that a properly informed patient in the same position would likely have declined or altered the treatment plan if given adequate information. (Some jurisdictions take a more subjective approach that places emphasis on the specific patient’s beliefs, values, and fears.) Finally, the patient must have suffered harm that would have been avoided had the physician made proper disclosures.
Informed Consent in Ongoing Treatment
Informed consent is not confined to an initial discussion alone. If a patient’s condition evolves or if new methods emerge, physicians generally have an ongoing duty to update the patient. Renewing the discussion allows the patient to remain a participant in treatment decisions, even if that means revisiting consent for a procedure to which they agreed under different circumstances. A common example is a long-term treatment plan for a chronic illness that requires reevaluation if the patient’s condition changes significantly or if a new, more effective treatment is discovered.
Situations When Informed Consent May Not Be Required
The law recognizes narrow situations when a provider may render treatment without complete disclosures. One is an emergency in which a patient faces immediate peril and cannot express their wishes. In such urgent settings, it is presumed that most individuals would wish to receive lifesaving care. Another exception is when the patient lacks capacity due to age or mental status, and a surrogate decision-maker is unavailable or cannot be consulted in time. A final rare category is therapeutic privilege, when divulging a severe risk might so distress the patient as to make rational decision-making nearly impossible. This privilege is viewed skeptically by courts and typically requires a strong justification.
