What Is Informed Consent?

Before obtaining consent from a patient for a treatment, procedure, operation, etc., a physician and/or hospital has a duty to provide certain information to the patient and to explain those facts in terms that the patient can understand. There are five pieces of information that a physician must make the patient aware of before obtaining consent:

1. The patient’s current physical condition
2. The purposes and advantages of the treatment
3. The reasonably foreseeable risks to the patient’s health associated with the treatment
4. The reasonably foreseeable risks to the patient’s health associated with no treatment
5. The available alternatives with their associated advantages and risks

According to Public Health Law 2805-d(1), “lack of informed consent” is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.” In the event of harm being brought to a patient who did not give the treating physician proper informed consent, if a reasonably prudent patient’s evaluation of the treatment options would have differed had proper informed consent existed, then the treating physician may be liable for damages sustained by the patient.

There are four situations where a physician’s disclosure of information to a patient and the patient’s informed consent is not required:

1. The risk not disclosed is too commonly known to warrant disclosure.
2. The patient assured the physician that he or she would undergo treatment regardless of any risks involved or told the physician that he or she did not want to be informed of the risks involved.
3. It was not reasonably possible to obtain consent from the patient.
4. The physician used his or her reasonable discretion in not disclosing certain information in the belief that disclosure could possibly adversely and substantially affect the patient’s condition.

When determining whether a particular course of medical treatment is in your best interest, you rely upon information given to you by your health care provider to help you make the proper decision. In plain English, this information must include the nature of the treatment to be revealed, in as much detail as reasonable and comprehensible to a layperson, and all potential risks associated with starting or foregoing said treatment. In addition, if other options exist that the patient may consider preferable, he or she must, too, be made aware of those alternatives.

That information enables you to offer informed consent, which is required for a health care professional to perform any kind of procedure with the exception that when a patient requires emergency life-saving treatment and cannot grant informed consent due to the illness or injury, a doctor will take the necessary actions to attempt to save the person’s life.

The issue of informed consent is a difficult one in courts, because it depends heavily upon variables that are not clearly defined such as someone’s understanding and thought process, even when a typewriter or preprinted “consent form” has been signed by a patient.

If you or a loved one was not properly informed of the details or if a procedure was performed without your consent and you are now suffering with injuries, disability or chronic pain, then you may have been the victim of medical malpractice attributable to lack of informed consent. To prove this in court and prevail under the law requires persuading the judge or jury that had you reviewed all the relevant information and you would have chosen differently.

A professional error such as this can be the cause of severe physical, financial and emotional consequences for an individual or family. The attorneys at Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., have a high level of expertise in fighting against negligent medical providers and are here to help their clients receive financial recovery for their harms and losses in order to regain the stability and dignity that they deserve.

If you or a loved one suffered injuries or someone close to you has died due to a physician’s failure to obtain proper informed consent before selecting a course of treatment or a lack of treatment, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., at 212-668-0100 to schedule your free initial consultation regarding your legal rights to obtain full compensation and damages due to your harms and losses.