How Does Informed Consent Work?
When and what a physician is legally required to tell you in Georgia
on October 10, 2017
Updated on April 25, 2022
Thousands of Georgia residents receive medical care every day from their local physicians and hospitals. Health care services are unique in that the customers do not tend to “shop around” or negotiate contract terms with providers. Instead, patients place their trust and faith in their doctor to make the right decisions. In many cases, patients may not even think to inquire about the possible risks or complications that may arise from a medical procedure, even something as complex as surgery.
This is why Georgia has what is known as an “informed consent” law. In plain terms, before undergoing certain kinds of surgery, a health care provider must inform you of the “general terms” regarding the procedure. While you cannot sue a doctor or hospital simply because they fail to provide such information, if you undergo a procedure and are subsequently injured due to negligence, failure to follow Georgia’s informed consent law may give rise to a malpractice claim.
“From what I understand, other states may have informed consent statutes that give you an actual claim if you violate the informed consent statute,” says Ranse M. Partin, a litigator at Conley Griggs Partin in Atlanta. “In Georgia, there’s not really an independent claim for violating the statute.”
The Elements of Informed Consent
Not all medical procedures require informed consent. Indeed, there is no “common law” duty to inform patients of the medical risks of any procedure. “Georgia’s informed consent statute is fairly specific as to what has to be disclosed,” says Partin. “And as long as that’s disclosed, the statute is satisfied.”
Georgia law only requires informed consent in the following situations:
- Surgical procedures under general anesthesia;
- Surgical procedures under spinal anesthesia;
- Surgical procedures under major regional anesthesia;
- an amniocentesis performed on a pregnant woman; or
- imaging procedures that involve injecting dyes into the patient.
Where informed consent is required, the health care provider must explain the procedure in sufficient terms so a layperson can understand. The patient should then sign a written form consenting to the procedure after reviewing all of the relevant information. Among the information that must be disclosed:
- The patient’s diagnosis, i.e. what condition necessitates the “proposed surgical or diagnostic procedure”;
- The “nature and purpose” of the procedure itself;
- Any “material risks” associated with the procedure;
- The “likelihood of success” for the procedure;
- Whether any “practical alternatives” exist to the procedure; and
- The patient’s likely prognosis if he or she declines to undergo the procedure.
The term “material risk” is critical. It is not required, nor is it feasible, for a health care provider to disclose all potential risks of a procedure. The informed consent statute therefore only mandates informing the patient of those risks “generally recognized and accepted by reasonably prudent physicians,” such as infection, paralysis, heart attack, or death. This is only a partial list–the legal test is essentially what a “reasonably prudent person” would consider in deciding whether or not to have the procedure.
And as noted above, a patient cannot sue simply because their doctor failed to make disclose a given material risk. Rather, if a risk was not disclosed, the patient suffered an injury during the procedure, and the lack of informed consent was a “proximate cause” of that injury, the patient can recover damages for malpractice. A qualified Georgia personal injury attorney can provide you with greater detail on whether or not lack of informed consent may have played a role in your malpractice case.