Your Malpractice Advisor

Malpractice: Your Informed Consent May Not Be Good Enough

Lee J. Johnson, JD


February 10, 2011

In This Article


You told your patient about the risks of a treatment or procedure before it began. Now he's unhappy about a bad result and is suing you -- and he could win! What gives?

It's important for doctors to know exactly what they need to tell patients before a recommended treatment; and it's important to do it the right way.

Many doctors are not aware that it's not only in advance of a major procedure or serious medication regimen that informed consent is required; it's also required for treatments or procedures that doctors may believe require no "disclosure" or informed consent. As a result, many doctors are not as vigilant with informed consent as they should be.

A lawsuit-in-waiting may start long before the summons and complaint, and even before a patient's treatment begins. What may happen is that the patient has a result he doesn't like, and thinks that he would not have had the procedure if he had known about this potential result. If the doctor didn't tell him about this possible outcome; the patient thinks this result must not be a risk of the procedure, but instead could be caused by the negligence of the doctor.

In a lawsuit for lack of informed consent, the patient usually claims that he was not informed about the risks of the treatment he received and that he would not have agreed to the proposed procedure had he known that this could be the result.

The state laws on informed consent do require the physician to disclose to the patient the risks, benefits, and alternatives of any proposed treatment or procedure. Yet any given treatment or procedure could have hundreds of associated risks. For any medication, all the side effects that are manifested in the US Food and Drug Administration studies could be considered "risks." If there are 50 potential side effects, you should at least describe the "material risks" whenever you prescribe a drug. Clearly, it is not possible for a physician to discuss every single risk that could possibly occur with every patient.

Physicians could have claims against them for not disclosing the risks of even small things, like mole removal, blood pressure medication, colonoscopy, CT scan, stitches, flu shots, etc.


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