What Is Informed Consent?
Understanding Your Rights as a Patient
A commonly litigated issue in medical malpractice cases is that of consent.
Generally, courts and lawyers look at two elements germane this issue,
although again, you are cautioned that this discussion is general, and
advised to consult with a professional in your state as to that state’s
First, did the patient actually consent to undergo a particular procedure;
and secondly, was the patient sufficiently apprised of the reasons for
the procedure, the risks inherent therein, the nature of the procedure,
such as to enable him/her to give an informed consent to the procedure
itself. For example, in many states, if a doctor operates on a patient
without the patient’s consent, that doctor may be liable for a battery.
A writing may or may not be required, depending upon the laws of the particular
state at issue. In many states, consent may be given orally, or even implied
by ones conscious submission to a procedure. Consent may also be implied
under circumstances of emergency, or where the patient is unconscious,
a minor, or incapable of consenting to treatment.
When Can a Doctor Act Without My Consent?
Generally, a physician may not extend the scope of an operation without
the consent of the patient. Likewise, the traditional rule is that a physician
is not permitted to perform an operation in the first place without proper
authorization. However, the law is far from universal in each state, and
there are numerous exceptions to this rule. This is especially so, in
emergency and life endangering conditions.
Moreover, in certain jurisdictions where the consent is framed in terms
of achievement of a specific result, as opposed to defining a particularized
procedure itself, the physician may be authorized to do what is reasonably
necessary and appropriate to the achievement of that result.
Even where the patient may have “consented” to the procedure,
however, that consent must necessarily be “informed” This
means that not only the patient must have been made aware of the need
for the medical treatment, but that the patient was also advised of all
risks inherent in the undertaking. The major justification for the informed
consent doctrine is the patient’s right of self-determination, that
is, that the patient has the paramount interest and freedom in deciding
what shall be done with his person.
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Consent/informed consent cases are often times difficult cases to prove.
It is not uncommon for the patient to recall being told one thing, while
the physician has a different recollection altogether. Where the medical
records do not chart or document fully that consent was obtained, it becomes
a credibility battle for the jury to decide.
Additionally, the plaintiff still must prove a causative link between the
failure to provide informed consent, and the untoward result. In other
words, the plaintiff must establish that s/he would not have undergone
the procedure which caused him/her the harm had s/he known all of the
risks involved. If other satisfactory procedures with less risks did not
exist, this burden often times becomes insurmountable for the damaged
Have questions about your case?
Call Scarlett Law Group today at (415) 688-2176.