Informed Consent Medical Malpractice

Informed Consent – What Is It and Why Is It Important?

Informed consent is the process by which patients receive information and ask questions so that they can make well-considered decisions about their medical care and treatment.

The cornerstone of informed consent is communication between a doctor and patient.

Informed consent is more than just a form to be filled out at the doctor’s office. Rather, informed consent is a process by which a doctor educates a patient about the nature of the patient’s condition, treatment options, potential risks and side effects of the procedure, the proposed benefit of a medical procedure, and what could happen if the patient did not receive the proposed medical intervention.

How a Doctor Obtains Informed Consent

Informed consent occurs when a physician and a patient communicate so that the patient understands the medical procedure the physician will perform and can knowingly and intelligently authorize and agree to the procedure.

To obtain informed consent, a medical provider should provide the patient with information about:

  • The patient’s condition
  • The patient’s diagnosis
  • The purpose and nature of the proposed medical procedure
  • Potential risks of the proposed procedure, including the potential benefit and drawbacks of the procedure, other available treatment options, and the risk of not having the procedure

The benefit of informed consent, of course, is that it gives the patient the opportunity to learn about his or her condition and diagnosis, time to explore other options, and the chance to gain a thorough understanding of the potential risks and benefits of a proposed procedure.

In most patient care settings the medical staff will document their informed consent procedure and have the patient sign a statement confirming that they understand the risks and benefits of the proposed treatment.

Ideally, the doctor will disclose to the patient every piece of information that could impact a patient’s decision about whether or not to undergo the proposed treatment. Significantly, this includes potential complications that could arise, especially if those complications could be serious enough to change the patient’s mind about the proposed course of treatment.

Of course, in cases of emergency informed consent is not always possible. During an emergency a physician may initiate medical treatment without informed consent. In cases like this the doctor cannot be held liable for informed consent medical malpractice. Ideally, however, a patient has made his or her wishes known through prior conversations with a primary care physician, through conversations with someone who was designated as a HealthCare Power of Attorney, and through Advanced Directives.

When a doctor does not receive informed consent, he or she can be held liable for medical negligence, even if the physician performed the procedure flawlessly.

What Happens When a Doctor Has Not Received Informed Consent?

When a doctor does not receive informed consent, he or she can be held liable for medical negligence, even if the physician performed the procedure flawlessly.

Suppose a doctor failed to inform a patient about a known potential complication of surgery. The patient had the surgery, which the doctor performed perfectly, but nonetheless and through no fault of the physician, the patient experiences the complication that the doctor failed to warn her about.

Even though the doctor was technically flawless, she could still be held liable for medical negligence precisely because the doctor did not warn the patient of the potential complication.

In this way, informed consent medical malpractice is unique in that it does not go to the doctor’s technical skill; rather, informed consent medical malpractice occurs because the doctor did not adhere to professional standards in making the required disclosures about potential complications from the surgery.

Informed Consent Is More than Signing a Form at the Doctor’s Office

Many people mistakenly believe that informed consent is simply the signing of a form at the doctor’s office saying that the doctor is allowed to do the procedure.

In reality, informed consent is much more complex, and much more nuanced.

When discussing a proposed medical procedure to obtain informed consent, a doctor should be sensitive to the factors that could be obstacles to obtaining informed consent, such as:

  • The age and mental health of the patient
  • The patient’s education level
  • Whether the patient can read
  • Cultural factors
  • The timing of the informed consent meeting

Informed consent is not obtained unless the patient understands the proposed course of treatment, any alternatives to the proposed treatment, potential complications, and the anticipated benefits of the treatment.

Lack of Informed Consent Based on Conflict of Interest

Another area of informed consent deals with conflicts of interest for the physician.

A conflict of interest may be present if the doctor is in a position to use their position for financial gain or to benefit a company in which they have a financial interest, when outside factors influence how a doctor executes his or or duties and responsibilities, or when outside interests might harm the doctor’s patients, staff, or practice.

Perhaps the most common form of conflict of interest comes when a doctor fails to disclose that he or she will earn large commissions based on the brand of prescription medication or medical device that he recommends.

What If a Doctor Did Not Obtain Informed Consent?

If a doctor performs a procedure they were not authorized to perform, or exceeds the scope of permission granted to the by the patient, the doctor could be liable for medical malpractice.

At Robenalt Law, medical malpractice attorney Tom Robenalt helps clients navigate the sometimes murky waters of implied consent medical malpractice to help people obtain the justice they deserve.

If you or someone you care about was severely injured or killed because of medical malpractice, contact an experienced Ohio medical malpractice lawyer at Robenalt Law today to schedule a free initial consultation to discuss your case. Call us at 216-223-7573, complete our online form, or email

Tom Robenalt started his litigation career at a large firm in Cleveland where he represented doctors and hospitals accused of medical malpractice. For the past 20 years, he has used that experience to help victims and the families of those injured by negligent health care providers.

Categories: Medical Malpractice