Lack of Informed Consent - Can You Sue for Medical Malpractice?
Most surgeries and other medical procedures involve some degree of risk and a potential for side effects. Before proceeding, doctors need to get informed consent from patients. Without informed consent, a patient who is injured during the procedure may be able to sue the doctor for malpractice, even if the injury was a standard risk in the situation.
The purpose of informed consent is to allow a patient to make their own decision about whether to undergo a certain procedure or course of treatment. In practice, patients usually sign a consent form that covers the risks of a procedure, but this is not necessarily enough on its own. The doctor needs to make sure that they explain the possible risks to the patient and that the patient understands them.
Standards for Informed Consent
An informed consent claim is based on the idea that the patient would not have undergone the procedure if they had been aware of the risk that harmed them. Since doctors do not need to disclose every possible risk, courts use either of two possible standards to determine whether a doctor should have disclosed a certain risk. First, they may consider whether a competent doctor would have told the patient about the risk. This usually comes down to whether the risk was significant and somewhat likely to occur. On the other hand, some courts focus on the question of whether a reasonable patient in the plaintiff’s position would have chosen not to undergo the procedure or treatment if they were aware of the risk. Under this second standard, doctors also are expected to tell patients about realistic alternatives to the recommended procedure or treatment.
One key difference between these two standards is that the first standard requires expert testimony, since it views the issue from the doctor’s perspective. The second standard may not necessarily require expert testimony, since it views the issue from the patient’s perspective.
Performing a Different Procedure
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. This type of claim is only valid when the different or additional procedure was a mistake, such as when a doctor operates on the wrong limb. (In these situations, other theories of liability may apply as well, such as an intentional tort like battery.)
When is Informed Consent Not Required?
Emergencies do not give doctors the time to carefully go over potential risks with a patient. They need to operate immediately to save the patient, whether or not the patient would have consented to the procedure. There are also some situations involving patients who need a certain life-saving treatment, outside the emergency context, but may not consent to it because the risks are daunting. Doctors may refrain from disclosing all of the details of the risks in these cases so that the patient is not dissuaded from receiving the treatment. However, the doctor should be able to explain why they did not disclose the risks.