Medical Malpractice Informed Consent

Brien Roche

Medical Malpractice Informed Consent

The law grants to patients the right to choose whether to obtain medical treatment. It requires doctors to provide the patient correct info as to diagnosis, the nature of the proposed treatment and risks of treatment. Also alternatives to that treatment should be presented. The doctor’s failure to provide that info may be medical malpractice.

The Virginia Jury Instruction on the issue is VMJI 35.080.  It states in part that “Informed consent means the consent of a patient after a doctor has given the patient all information (emphasis added) about the treatment and its risks that would be given to a patient by a reasonably prudent practitioner in the doctor’s field of practice or specialty.”  The important language in that sentence is “all information”.  That means the doctor has to tell the whole truth.  The doctor has to give the big picture to the patient so the patient can make a decision.

An important element of an informed consent claim is the patient’s actual consent. The issue there is whether the plaintiff would have given consent, not whether a reasonable person would have given consent. In other words the standard is a subjective one and not an objective one. Pergolizzi v. Bowman, 76 Va. App. 310 (2022)

These claims may be an element of a medical malpractice action. Prior to rendering treatment a doctor should obtain the informed consent of the patient. The need for this consent and the content of what is to be said to the patient is established through an expert witness.

George Annas

Professor George Annas from Boston University’s School of Public Health stated at a meeting of the ABA that informed consent was under attack.  He cited the fact that doctors were encouraged to perform procedures without it. In addition he stated the process of obtaining consent was really just a matter of having a patient sign a form. Ensuring that the patient understood what was going on was not required.

Between 2004 and 2009 the National Institutes of Health funded a study that sought to find ways to improve treatment for premature babies.  Some of the newborns were given different levels of oxygen.   Annas maintains that the parents were not informed of the risk of death or blindness that came with this treatment.

As a result of Annas’ comments, in 2014 the ABA decided to engage in a study of the issue of informed consent.  Starting in October of 2014 a committee held a series of town hall meetings across the U.S. The goal was to gather info on informed consent.  At this point it is unclear as to what the committee will do with info that it gathered.

Medical Malpractice Informed Consent-Sign it and Shut Up

Unfortunately what all too often happens with consent forms is that the patient is given a form and told to sign it.  Sometimes that form is presented shortly before the procedure. It may be that the doctor as part of an office visit has already explained the form. However that is not the norm.

In an ideal world the procedure and all of the issues referenced above are explained to the patient orally. Those oral statements are then summarized in writing. The patient then reviews the form outside of the doctor’s office. Only after the patient has signed the informed consent form is the procedure scheduled.

The whole concept of obtaining informed consent becomes tougher where the patient has some diminished capacity. In that case a medical agent must give the informed consent.

Consent Navigators

Some hospitals go the extent of having informed consent navigators. They are present before the patient undergoes the procedure. That way it is clearly documented that the patient understands all of the issues. Also for more information on informed consent see the pages on Wikipedia.

Medical Malpractice Informed Consent-Elements

The basic elements of an informed consent claim are that:

• Information was omitted.
• The information was important.
• The patient would have chosen a different course if the information had been given.
• That treatment that was pursued was in fact a cause of harm that the alternative would not have caused.

However the key here may be on the word “important”.  If the procedure is very dangerous and the alternative is not and has an equally good outcome, that’s important.

If the surgeon has an extremely low success rate for the purported procedure, that’s important.

Where the treater has a financial conflict, that may be important.

Trying to determine exactly what is important may be difficult.  There was a study conducted in 2019 by John T. James and others that can be found at 9 BMJ 1 (2019).  BMJ is the British Medical Journal.  In addition this article may be used as a reliable authority to show what is important.

Proving Informed Consent

Discovery is probably going to be the means to get the defense to admit that the patient had a right to know.  Develop your own rules of the road as Pat Malone has suggested based upon the concept that the rules must be clear, inarguable, important and violated.

The failure to obtain consent is probably going to be disputed.  If it is, then make sure you pin the doctor down as to exactly when the meeting occurred wherein the consent was obtained.  Furthermore confirm where it was noted in the chart that the meeting occurred, where it occurred, who was present and what was said.

The doctor may try to turn the tables on you and say that the patient didn’t ask any question.  The duty doesn’t rest with the patient.  The duty rests with the doctor to disclose.

Informed Consent-How Consent Forms Work

The fact that a patient has signed a consent form does not mean that the patient has consented to any fault of the doctor. Indeed if there is no issue of consent then the consent form is not relevant. It should not even be presented as evidence during a trial. However the defense may try to rely upon the consent form as a basis for showing that the patient understood the risks. In addition they will argue the patient assumed those risks. That is not the purpose of an informed consent form.

Imagine during the course of surgery the surgeon perforates the bladder. The fact that that risk was disclosed in the consent form does not protect the doctor. The consent form is not even relevant. Call, or contact us for a free consult.