Skip to Content

Medical Malpractice: Lack of Informed Consent


When a patient undergoes a medical procedure, in most cases, there is always some element of risk involved. Before the patient is treated, it is the doctor's and/or hospital's responsibility to educate the patient about the specific treatment, procedure, or test, including all of the primary risks involved, so that the patient has a clear understanding of what he or she is getting into.

When doctors and hospitals establish this "informed consent," the patient acknowledges they are aware of the risks and essential information surrounding their particular treatment or procedure. When informed consent is not established and the patient suffers harm as a result of the procedure, the treating hospital or doctor could potentially be held liable for any side effects or unexpected injuries.

Typically, informed consent forms which detail the risks involved are provided to the patient before any treatment or procedure is given. Patients are usually required to sign these forms before the procedure begins. However, simply signing these forms does not necessary establish that the patient gave informed consent. A doctor or medical professional treating the patient in question must also discuss the procedure and its inherent risks with the patient and establish, as much as it is possible, that the patient understands those risks before the treatment begins.

If a physician administers a procedure or course of treatment different from the one planned and discussed with the patient, the patient may have a case for medical malpractice based on lack of informed consent. However, that is usually only if the alternate procedure performed was a mistake or unnecessary. If in the performance of the original procedure, the physician discovers an unexpected, but serious, medical issue that requires the new procedure be done, lack of informed consent may not come into play.

Even if the patient can prove that informed consent has not been established to a court's satisfaction, it may be necessary to prove that risk of the specific injury or harm caused by administration of the procedure was one a competent physician would have normally disclosed or that a normal patient presenting the same medical history and conditions would have elected not to have the treatment, test or procedure in the face of the risks for doing so.

As important as informed consent is to medical malpractice law, there are circumstances wherein informed consent is not required. In the case of an emergency, when there is no time to explain the risks involved and the physician has to act quickly in order to save the patient's life, informed consent is not required by law. Even if the patient or patient's counsel argues that he or she would not have permitted the treatment involved, the circumstances dictate that the physician has the right to pursue a general standard of care in the emergency situation involved without informed consent.

Likewise, when the patient is in such distress that it can be assumed they might refuse reasonable treatment, the doctor may not be required to establish informed consent. A dire prognosis, for instance, may put a patient in such a state that they might not reasonably consider the risks involved and refuse treatment because of those risks if disclosed. The physician may elect not to fully disclose all of the risks involved (particularly if those risks are equally frightening) because of the patient's fragile mental state, but the physician must clearly present the case for why they did not disclose everything involved in the procedure in question should that procedure result in a medical malpractice case.

If you have questions about a suspected case of medical neglect or incompetence and you feel that informed consent was necessary but not established, please contact the experience medical malpractice attorneys of Panio Law Offices. We are able to secure medical expert counsel who can help establish the standard of care in your case, and the risks involved that a competent medical professional would have been compelled to disclose before treatment. We are able to fight for you to ensure you receive the highest award to which you are entitled for your injuries and damages.

Call the attorneys of Panio Law Offices at (708) 928-8680. We can help.

Share To: