There is clearly an impression, not only among the general public but also among some in the medical community, that informed consent is a piece of paper with signatures on it. It is not.
A mere form with risks and signatures cannot shield a doctor from liability because it is titled informed consent. The doctor performing the procedure or providing the treatment needs to have a discussion with the patient about what the procedure or treatment will be and what the risks and benefits are. More specifically, patients in most states must be told: (1) the problem that needs to be fixed, (2) the nature of the procedure, (3) the likelihood that the procedure will work, and (4) the risks involved.
Does this mean that the doctor must provide an overview of the medical literature to the patient? No. But it does mean that they have to summarize what treatment the patient is going to receive and what the risks are of the procedure. How about playing a videotape for the patient? Courts are still figuring that one out. There is probably not a "one size fits all" answer to that question.
The majority rule that views informed consent from a reasonable patient perspective. In other words, the law lets the mythical reasonable patient decide what someone should be told who is having a procedure. We think this is the more enlightened rule. (Minnesota's legislature recently went the wrong way on this.)
It follows that you don't need a medical expert to establish what the doctor should have told the patient. Still, plaintiffs need an expert if they cannot clearly get from the defendant or her experts:
- nature of the risks inherent in a particular treatment,
- probabilities of therapeutic success,
- frequency of the occurrence of particular risks,
- nature of available alternatives to treatment, and
- whether or not disclosure would be detrimental to a patient.
Often, these issue are not in dispute in the case and you can get what you need from the defendant doctor, discovery admissions, or defendant's experts. But going into any malpractice case without an expert is like flying blind. There is just no good reason.Contact Us
We fight to get our clients who have suffered from medical negligence, including claims that the doctors did not provide the necessary information to consent to a medical procedure. Call us to discuss your potential case at 800-553-8082 or get a free on-line consultation.More Information