Informed Consent Medical Malpractice Cases

With few exceptions, doctors must obtain informed consent from their patient before performing surgery or implementing any other significant medical treatment plan. In the most general sense, informed consent means the doctor must provide the patient sufficient information to make an informed decision about their medical care. Informed consent is not simply getting a patient to sign a written consent form. There must be thorough communication by the doctor to the patient that results in the patient agreeing to medical treatment. When a medical provider fails to obtain informed consent and the patient is harmed, the medical provider may be guilty of medical malpractice. This is true even if the medical treatment provided complied with the standard of care. If you or a loved may not have received informed consent before a particular procedure and serious harm resulted, we invite you to contact Chicago medical malpractice lawyer Jason M. Kroot of Kroot Law, LLC for a free and confidential consultation.

Requirements For Informed Consent According The AMA

The American Medical Association or AMA is the largest association of physicians and medical students in the United States. According the AMA, obtaining a signed consent form from a patient is not sufficient to obtain informed consent. The AMA recognizes that, in this communication process, the physician must disclose and discuss with the patient:

  • The patient's diagnosis, if known;
  • The nature and purpose of a proposed treatment or procedure;
  • The risks and benefits of a proposed treatment or procedure;
  • Alternatives (regardless of their cost or the extent to which the treatment options are covered by health insurance);
  • The risks and benefits of the alternative treatment or procedure; and
  • The risks and benefits of not receiving or undergoing a treatment or procedure.

Unfortunately, some physicians fail to take the time to discuss and disclose this information with their patient before obtaining permission from their patient to initiate treatment. This can be particularly upsetting when a complication develops from surgery and the patient would not have consented to surgery if they were properly informed.

Special Situations Of Informed Consent

There are a variety of special circumstances were traditional informed consent may not be required or possible. Where the patient is a minor, informed consent is generally obtained from the minor’s parent or legal guardian. If the patient is mental disabled, informed consent must be obtained through a legal guardian; if there is no legal guardian, informed consent becomes more complicated. When there is a medical emergency, there may be no time or ability to obtain informed consent from the patient because of the patient’s condition. In that instance, the medical staff must exercise reasonable care in making the decision for the patient. The patient’s consent can be implied based on what they would have likely consented to if they were able.

Proving An Informed Consent Medical Malpractice Case

Dating back to the early 1990’s, the law has recognized that every adult of sound mind has the right to determine what shall be done with their own body, including whether they wish to have surgery performed on their body. In his 1914 opinion, Justice Cardozo said “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” Today, the vast majority of informed consent cases are based on medical negligence law rather than assault or battery—though battery may be alleged in some cases.

A party seeking to prove a medical malpractice case based on a failure to obtain informed consent must prove a deviation from the accepted standard of care, causation, and damages. Regarding deviation, most jurisdictions require the plaintiff to prove, through expert testimony, what information the defendant should have been communicated to the plaintiff and how the defendant’s communication was insufficient or wrong. Although obtaining a signed consent form is not enough, the defense will likely still use the consent form to help establish their case defense—perhaps when combined with alleged oral communication by the defendant or other health providers. There are various ways to combat these any other defense tactics which are beyond the scope of this article. Assuming the plaintiff can prove informed consent was not adequate, the plaintiff must still prove a causal connection between that negligence and the resulting harm. That is, the plaintiff must still prove they would not have consented to the medical treatment (had they been properly advised) and that the medical outcome would have been different.

Informed consent cases can be very tricky to prove. When considering a medical malpractice lawyer, it is important to select one with the knowledge, skill, and dedication to effectively handle an informed consent. For further information, we invite to contact the Chicago medical malpractice lawyers at Kroot Law, LLC for a free consultation.

FREE CONSULTATION
Contact Us