What Is Informed Consent?

Medical malpractice is a serious violation of a patient’s expectation that they will receive medical care that meets the medical community’s accepted standards. While we often think of medical malpractice as blatant trauma, such as amputating the wrong limb, leaving a surgical tool inside a body cavity, or a deadly anesthesia error, sometimes, medical malpractice results from a serious legal oversight—a medical provider’s failure to obtain informed consent.

Understanding Informed Consent In Medical Care

Healthcare providers have a legal obligation to fully disclose all necessary information before performing a medical procedure or prescribing/administering a medication. This is the requirement for doctors and other medical professionals to obtain the patient’s informed consent. The National Library of Medicine describes informed consent as follows:

“Informed consent is a cornerstone of medicine, ensuring ethical treatment decisions and patient-centered care. Patients have the right to make informed and voluntary treatment decisions.”

Informed consent requires the medical provider to fully inform their patient about all potential risks, benefits, and alternatives of a medical procedure or treatment before obtaining a signature on consent forms. Either failing to obtain a patient’s signature or failing to fully disclose all risks, benefits, and alternatives of a treatment before performing a procedure or administering a medication is medical malpractice.

When Is Lack of Informed Consent Medical Malpractice?

When a medical provider fails to fully inform their patient of the risks of a course of treatment, it’s medical malpractice because it breaches the medical provider’s legal duty of care. Proving medical malpractice requires evidence that the case meets the following legal standards of liability:

• A doctor/patient relationship was in place at the time the malpractice occurred
• The medical provider had a legal duty to treat the patient at the level of care accepted by the medical community
• They breached this duty of care through negligence
• The breach of duty caused harm to the patient
• The patient suffered damages from the malpractice

Evidence in lack-of-informed-consent cases includes the patient’s medical records, medical bills, and medical expert testimony.

Common Medical Malpractice Claims for Lack of Informed Consent

Adverse medical outcomes are distressing enough, but it compounds the trauma when a patient who suffered an injury, worsened medical condition, or wrongful death was not fully informed of the risks and alternatives to their medical treatment, in addition to the benefits. Common medical malpractice claims in cases of lack of informed consent include the following:

• Undisclosed medication side effects
• Failure to disclose potential surgical complications
• Unnecessary medical procedures
• Performing a different procedure than the one to which the patient consented

Medical providers must inform their patients of all possible negative outcomes of a medical procedure or treatment before obtaining the patient’s signature on consent forms. Failing to obtain fully informed consent leaves the medical provider liable for the patient’s damages in a medical malpractice claim.

Recovering Damages in a Lack-of-Informed-Consent Medical Malpractice Case

Medical malpractice can cause permanent harm with financial consequences as well as physical ones. Depending on the severity of the injury, a successful medical malpractice claim for failure to obtain informed consent could recover damages such as the following:

• Reimbursement for medical expenses
• Future medical costs related to the injury or worsened medical outcome
• Lost earnings
• Future income loss
• Reduced earning ability
• Compensation for pain and suffering
• Catastrophic injury damages for permanent harm, such as loss of limb, disfigurement, disability, organ loss, or the loss of one of the senses

If the medical malpractice caused the patient’s death, the personal representative of their estate could recover compensation for the decedent’s family through a wrongful death claim.

An experienced Chicago medical malpractice attorney can help an injured patient or their surviving family members to recover their losses.