Suit over informed consent? Make it easier to defend
Sparse, overly detailed charting both problematic
If I’d known the risks, I wouldn’t have had the procedure." "The physician never told me that."
If a patient made these allegations about your care, would you be able to prove otherwise?
To successfully sue a physician for failure to obtain informed consent, plaintiffs need to prove three things, says Samantha L. Prokop, Esq., an attorney at Brennan, Manna & Diamond in Akron, OH:
- that the physician failed to disclose material and reasonably foreseeable risks of a contemplated course of action to a patient;
- that one or more of the aforementioned undisclosed and foreseeable risk occurred and harmed the patient;
- that a reasonable patient under the circumstances, had the required disclosures been made, would have refused to consent to the course of action that resulted in injury.1-3
Even if doctors provide world-class medical care, they still can be held liable under an informed consent theory of liability, says Prokop. "The whole notion of informed consent as a legal cause of action is predicated on protecting the autonomy interests of the patient, rather than holding physicians to an objective standard of care," she explains.4 Consider these practices to reduce risk of lawsuits involving informed consent:
• Know state requirements.
"The most important thing to note about informed consent is that requirements vary by state," says Prokop. Some jurisdictions explicitly require the discussion of alternative treatments, for example.5
• Verbally discuss reasonable foreseeable risks with the patient, and answer any and all questions the patient has about the treatment, including potential alternative treatments.
"Have the patient explain back to you the risks and benefits of treatment, and why he or she has chosen a particular course of recommended treatment, to ensure the patient is truly giving informed consent," says Prokop.
• Use a written consent form that states that informed consent has been given by the patient.
"A written form provides excellent proof that informed consent was given," says Prokop. "In some circumstances, a signed form has even prevented a plaintiff’s lawsuit from moving forward."6
• Personally obtain informed consent from patients.
"There is some case law that tends to suggest that the duty to obtain informed consent from patients cannot be delegated," says Prokop.
The Supreme Court of South Dakota held that when a surgeon delegated his duty to obtain a patient’s informed consent for gastric bypass surgery to hospital staff, that delegation did not relieve the surgeon of his duty to make full disclosure to and obtain informed consent from the patient.7
Similarly, a North Carolina court held that when a pregnant hospitalized patient was treated by her own private physician who performed a forceps delivery resulting in severe spinal issues, the hospital had no responsibility to obtain informed consent from the patient.
"The private physician alone was responsible for obtaining informed consent from her patient," says Prokop.8
- Howard v. Univ. of Medicine & Dentistry of New Jersey, 172 N.J. 537, 549, 800 A.2d 73, 79 (2002).
- Ashe v. Radiation Oncology Assoc., 9 S.W.3d 119, 120 (Tenn.1999).
- Nickell v. Gonzalez, 17 Ohio St. 3d 136, 139, 477 N.E.2d 1145, 1148 (1985).
- Barcai v. Betwee, Haw 470, 483, 50 P.3d 946, 959.
- McQuitty v. Spangler, 410 Md. 1, 18, 976 A.2d 1020, 1030 (2009).
- 6. Johnson v. Staten Island Med. Grp., 82 A.D.3d 708, 709, 918 N.Y.S.2d 132, 133-34 (2011).
- Veith v. O’Brien, 2007 SD 88, 739 N.W.2d 15 (S.D. 2007).
- Daniels v. Durham Cty. Hosp. Corp., 171 N.C. App. 535, 540, 615 S.E.2d 60, 64 (N.C. App. 2005).