Informed Consent: Every Patient's Right

By Jack H. Olender, Esq.

This article has been published in The Washington Informer, The Washington Afro-American, The Senior Beacon and The Metro Herald.

Medical malpractice occurs when a health care provider negligently inflicts an avoidable injury upon a patient. Under those circumstances, the patient has a right to file suit against the provider for money damages. But not all injuries are avoidable. Sometimes patients suffer and even die from unavoidable injuries that are not due to medical negligence. Even the very best medicine can fail, leaving the patient just as ill or even worse off than before. If a doctor was not at fault for an injury, can her patient ever sue for malpractice? Under certain circumstances, a patient injured by a procedure or treatment may have a valid claim against his doctor if the doctor failed to explain the risks involved. Under the law, doctors must obtain informed consent from a patient before administering a medical treatment or procedure. A doctor who fails to obtain informed consent commits medical malpractice.

Consent and the Law

Under our system of justice, every competent adult has a right to decide what is done - and not done - to his or her own body. In 1914, Supreme Court Justice Benjamin Cardozo wrote:

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except in cases of emergency..."

Justice Cardozo's strongly worded decision gave patients real but still limited power. Although doctors at the time were required to get permission from patients to perform surgery, they were not required to explain the potential risks. Decades later the courts have declared that patients have a right not only to say "yes" or "no" but give meaningful consent, which can be given only after all of the potential risks and benefits of a procedure are explained to them.

Asserting Your Right to Give Consent

Given the complexity of modern medicine, it is easy to feel overwhelmed and to turn all major health decisions over to our physician. This strategy works if the outcome is satisfactory; but when the doctor's decisions lead to increased misery, we start to question the decisions that were made. By then it is too late.

Fortunately, we don't have to be a passive partner in our own health care; nor do we have to be medical experts. Each of us can be an advocate for our own health. We can begin by asking questions and trusting our common sense. If you are too overwhelmed or ill to advocate for yourself, invite a trusted friend or family member along to your medical appointment to ask questions for you.

Whenever a physician prescribes medication or therapy or recommends a surgical procedure, exercise your right to give informed consent by asking the following questions:

What are the risks and potentially positive outcomes?

Are there any reasonable alternatives to the proposed treatment?

If so, what are the dangers and benefits of these alternatives?

What are the drawbacks and advantages of doing nothing?

How many times has the physician performed the procedure before?

Answers to these questions can help you make informed and responsible choices and help your doctor deliver the kind of health care you want.

If you are going to have surgery, expect to be given a "boilerplate" consent form to sign. A signed consent form can waive the patient's right to complain about the known risks of an operation. Do not sign unless you understand those risks and are willing to assume them! Under certain circumstances, written consent does not protect doctors or hospitals from a claim. For example, a consent form signed by a patient in extreme physical or emotional distress, or without a meaningful discussion with the physician, may not be valid. Keep in mind that by signing you do not surrender your right to sue if malpractice occurs.

If Your Physician Acts Without Your Consent

If something does go wrong, a patient who questions her doctor about risks beforehand may have a stronger claim than a patient who never speaks up. For example, an injured patient recently won a lawsuit against a neurosurgeon for failing to speak candidly about an important risk factor: His lack of experience. Prior to the operation, the patient voiced her wish for a doctor experienced with this type of surgery, and asked the doctor how many times he had done it. The doctor lied, saying "dozens - lots of times." In fact, he had performed this kind of surgery only twice before. By inflating his qualifications, the doctor concealed a risk - his inexperience - in order to influence the patient to consent to undergo surgery with him. The jury sided with the patient, recognizing that without the truth she could not give meaningful consent to the surgery. Had the patient never questioned the surgeon beforehand, her case against him would have been much weaker.

Just because a physician fails to obtain a patient's informed consent does not mean that he has a valid claim against the doctor. A patient who is not warned by his doctor about unpleasant but temporary side effects of a medication does not have a strong case; he or she must show significant injury from the treatment or procedure. Also, to win a case, a patient must prove that a reasonable person under similar circumstance would likewise have withheld consent. For example, a patient may allege that a doctor failed to obtain her informed consent for a procedure. However, if the defendant can persuade a jury or judge that any reasonable person would have given consent, then the patient's case will not stand up. Despite these hurdles, patients can and do win informed consent cases.

Making Our Own Decisions

Life is full of risks, but we pick and choose according to our own values and instincts. Sometimes choices lead to an undesired result. But it is better for those choices to be made with our permission rather than by someone else without our consent. Be a full partner in your health care. Every time a physician prescribes a medication or a therapy or a surgical procedure, ask about risks and benefits and alternatives. You're entitled to an honest answer and to choose what is right for you. If information about the risks is concealed from you and you are seriously injured, contact an experienced medical malpractice lawyer immediately.

Copyright © 1998, Jack H. Olender