Can You Sue for Lack of Informed Consent?

We grow up believing that doctors and other medical professionals are there to help us and make us feel better. Unfortunately, this doesn’t always happen. A doctor must fully inform the patient of available treatments and their risks. Without this informed consent, a patient could choose a treatment without knowing or understanding the potential complications. Patients who suffer these complications could have a medical malpractice claim.

What Is Informed Consent?

Medical professionals need a patient’s informed consent before they can begin a course of treatment. Doctors have an ethical and legal obligation to obtain the patient’s consent. Several topics are covered during an informed consent conversation.

The patient’s diagnosis is communicated, leading to possible treatment options. The doctor discusses the recommended medical treatment and its potential risks. The doctor then educates the patient on alternative treatments and their risks. Finally, the doctor will discuss the consequences of not choosing any treatment option and opting for no treatment.

Legally, the information shared needs to be easily understood. That way, patients can understand what’s available to them and the potential outcomes, and they can make an informed decision. Many medical care facilities have patients sign an informed consent form. That way, the information given to the patient is recorded, and the patient acknowledges that they received and understood it.

“If you’re considering surgery or a significant medical procedure, you need to make sure you’re prepared with questions and get the necessary information to be able to understand the risks that you face,” says Marc E. McCallister, a top-rated medical malpractice attorney in Chicago, Illinois for the Cavanagh Sorich Law Group. “If medical providers do not give patients the information and answers necessary to understand their risks, that can give rise to situations where bad outcomes can happen. When there is a breakdown in communication between patients and medical providers, mistakes can happen, and people can get hurt.”

Common Reasons for Lack of Consent

A lack of consent isn’t always a total lack of consent. Often, the issue is more subtle.

It could be that a specific complication wasn’t listed on the agreement form. Another situation is when the patient suffers complications that are well-known within the medical community but not communicated to the patient. The doctor could have explained the complications differently than how they are outlined on the form. Finally, the doctor could have performed a different treatment or procedure than the one agreed upon on the form.

When Is Informed Consent Required?

There are limited circumstances where informed consent is not required. In the majority of situations, a patient must give informed consent before the procedure takes place. In addition, patients have a right to change their minds. A patient can stop or switch treatment even after giving written or verbal approval.

Required Written Consent

Some procedures require written consent from the patient before they can take place. These are typically invasive, intense, or have serious potential side effects. These are some of the treatments or procedures that require written consent.

• Anesthesia
• Chemotherapy
• Invasive medical procedures
• Placement of a medical device
• Radiation therapy
• Surgical procedure (both inpatient and outpatient)
• Vaccines

Some laboratory tests also require written consent, but not all do.

Minors and Individuals with Disabilities

In a legal capacity, an individual must be 18 to give informed consent. A doctor wouldn’t be able to obtain informed consent from someone under the age of 18. In this situation, informed consent isn’t required from the patient, but it is from the minor’s parent or guardian.

Similarly, some adults over 18 have a legal guardian who is authorized to make medical decisions on their behalf. Seeking informed consent from the patient could cause more harm than good. In these situations, informed consent from the guardian is required, not the patient.

Procedures Not involving Medical Treatment

Informed consent focuses on informing patients of the potential risks of a treatment. However, not everything a medical professional or doctor does is treatment. Informed consent is not required for noninvasive routine procedures that are not considered treatment. Examples of these procedures could be using a stethoscope to listen to the patient’s heart or using an otoscope to look in the ear canal. These procedures are so routine and widespread that doctors rarely discuss the risks of such actions.

Emergency Treatment

The most common exception to the requirement is an emergency situation. Healthcare providers in an emergency room may be unable to get consent from the patient brought in for treatment. The patient could be unconscious and unable to communicate. Often, first responders bring patients in on their own and do not have a representative with them. The medical team can begin life-saving treatment without informed consent. However, they should obtain consent as soon as possible to continue treatment. There is no specific time period for this. Courts generally use the guidelines for what a reasonable person would do.

What Are Your Legal Options if Your Doctor Didn’t Get Informed Consent?

If you suspect that your doctor should have gotten informed consent and didn’t, one option is to seek a second opinion. Ask for your medical records to be shared with the other doctor. You can gain valuable insight into how the other doctor may have handled consent and treatment. Another option is to seek out the patient advocacy department within the medical facility. Many hospitals and large healthcare facilities have a department that helps patients advocate for themselves.

If patients suspect a lack of consent, they could file a complaint with the governing medical board or regulatory agency. Speaking with a lawyer about your legal rights can also provide valuable insight. They can explain the best process for filing a formal complaint and a civil lawsuit.

Statute of Limitations

Whatever course of action a patient decides to take, they shouldn’t wait. Medical malpractice lawsuit time limits vary from state to state. In some states, they are as short as one to two years. This doesn’t give patients much time to file their lawsuits.

How Do You Prove Lack of Informed Consent?

There are two elements to a lack of informed consent claim. A victim of medical malpractice claiming lack of consent must show that the doctor performed a treatment without the patient’s informed consent. Then, show that if they knew about the risks of the treatment, they wouldn’t have agreed. The injury suffered directly results from the patient’s inability to make an informed decision.

McCallister explains the difficulty in proving a lack of informed consent claim. “Whether that conversation [of informed consent] actually happens or not can become very hard to prove. It is often an additional claim added on to another medical malpractice claim, rather than a claim independently brought.”

Lack of Consent Elements

Courts generally use two standards to determine whether the defendant should have sought informed consent from the patient before beginning treatment. The first is whether a competent doctor would have sought consent from the patient. The second is whether a reasonable patient would have chosen to reject treatment once informed of the risk.

Negligence and Gross Negligence

There are two levels of negligence that victims can seek. The first is negligence, which occurs when the doctor’s actions harm the patient. This commonly happens when the doctor makes a mistake. The second is gross negligence, which is a higher standard and involves extreme recklessness on the doctor’s part. There is typically a lack of concern for the patient’s life. Examples of gross negligence include leaving a medical instrument in the body or amputating the wrong limb.

Types of Evidence

An informed consent claim focuses heavily on evidence and documentation. Medical records, witness testimony, patient testimony, and expert analysis can all help prove a medical malpractice claim for lack of consent.

Expert testimony can help establish the widely established standard of care. This can help show medical negligence by showing how competent doctors would have acted.

Potential Criminal Charges

A doctor failing to obtain proper informed consent may face harsher consequences than a medical malpractice claim. Criminal charges could also apply. Battery is the legal term for the unauthorized touching of another person that causes harm. Doctors giving treatment that causes harm without consent could satisfy the state’s elements for criminal battery charges.

Signs of a Possible Lack of Consent Claim

If you are unsure of your situation, it can be confusing to determine whether or not you should have given consent. Patients can look for signs of a possible consent issue. If they notice one or more, speaking with a medical malpractice lawyer for a case evaluation could be the next step. A lawyer experienced in consent cases can provide knowledgeable insight into the patient’s legal rights and possible legal claims.

Patients blindsided by complications could be a sign that the doctor failed to fully inform the patient. The medical staff should never pressure a patient to sign. Aggressive or hard pushing to sign can be a red flag that something is wrong. Miscommunication happens, but it should never be so extreme that the patient expects one thing and then experiences something completely different. This is a common reason for consent malpractice claims. If a patient finds out later about alternative treatments that the doctor didn’t inform them of, this can be a sign of incomplete consent.

The final common scenario can be complicated. Generally, a doctor should only perform the procedure or treatment agreed to. Performing a procedure different from the one agreed upon can be the basis of a lack of consent claim. However, there are exceptions to this. An example of this type of claim that warrants a malpractice claim is when the doctor performs surgery on the wrong limb. An example of a non-qualifying claim is when the doctor removes a polyp while the patient is under anesthesia. The doctor only obtained consent to remove specific polyps but then found and removed additional ones. The additional removal is reasonable and did not cause the patient harm. The patient may not have a claim in this situation.

Do You Need an Experienced Medical Malpractice Lawyer?

Consent cases can be complicated, detailed, and case-specific. An experienced medical malpractice attorney can provide a case evaluation and explain legal options. If a patient does have a possible claim, a lawyer can provide valuable guidance throughout the legal process. They can help gather the most effective evidence and form the most compelling arguments.

Visit the Super Lawyers directory to begin your search for an experienced medical malpractice lawyer. For more information on these legal issues, see our overviews on types of medical malpractice.