Informed consent to medical treatment is fundamental in both ethics and law. It is a process by which a patient learns about and understands the purpose, benefits, and potential risks of a medical or surgical intervention, and then agrees to receive the treatment. It establishes a patient’s “right to determine what shall be done with his/her body.”
The purpose of informed consent is to allow a patient to make his/her own decision about whether to undergo a certain procedure or course of treatment. Inform consent creates trust between doctor and patient by ensuring good understanding.
Informed Consent & Medical Malpractice
In medical malpractice litigation, documentation of the informed consent process can play a major role. Except in situations where a patient cannot give her informed consent to treatment, such as when the patient arrives at a hospital unconscious and with serious injuries, doctors have a duty to obtain a patient’s informed consent prior to beginning any treatment. Also, if an individual is considered unable to give informed consent, another person is generally authorized to give consent on his behalf, e.g., parents or legal guardians of a child, etc. Medical malpractice arising from a lack of informed consent differs from all other forms of medical malpractice.
Scenario 1: If prior to surgery, a doctor fails to inform the patient about a
complication that might arise, a complication important enough that, had it been disclosed, the patient might not have chosen to go forward with the surgery. The doctor may perform the treatment or surgery in a technically flawless manner but can still be liable for medical malpractice. Despite the surgeon’s technical skill in performing the surgery, the patient nevertheless experiences the complication about which the doctor failed to inform him. In such a scenario, the surgeon is still liable for medical malpractice even though there was no negligence in how he actually performed the surgery.
Scenario 2: If a doctor performs a different procedure from the procedure to which the patient agreed, the patient may be able to sue for malpractice based on their lack of informed consent to that procedure. However, a patient probably cannot sue for malpractice under this theory if a doctor fixes a serious issue that they find during the course of the initial procedure.
Proving that the doctor/surgeon failed to get informed consent is usually not enough to win in a malpractice lawsuit. For a successful case, there should be a connection between the lack of informed consent and some injury the patient suffered. This connection must generally show that the patient would not have consented to the medical treatment and that the medical outcome would have been different if he/she had been given the opportunity to consent or not.
