Law Offices of Ronald C. Burke


Lack of Informed Consent

The two most common theories that a patient can rely upon in suing a doctor or hospital are: 1) medical malpractice; and, 2) lack of informed consent.  A lack of informed consent refers to a physician or hospital neglecting to provide a patient appropriate information about the risks, benefits and alternatives to a surgery or treatment with medication in a non-emergency setting. Lack of informed consent is an independent cause of action that recognizes that everyone has the right to choose whether to accept a doctor's recommendation on medical treatment. In order to exercise that right, you need information readily understandable by the average layman about the proposed medical treatment.

If you agree to accept a doctor's advice and undergo surgery, that doctor is required to tell you what are the risks and benefits of that surgery. The same rules apply to a patient consenting to an injection of medication or any drug therapy.

Don't hesitate to ask you doctor questions like: what is the likelihood that the procedure (or drug therapy) will be successful; what can I expect if I don't have the operation; is there a less invasive procedure available that will accomplish the same goals; what are the odds I will suffer one of the risks of the procedure; and, how many of these procedures have you performed and what is your personal success rate. Getting answers to these questions is important and  the only way you can make an intelligent decision on whether to consent to the proposed surgery or medication/drug therapy.

According to the American College of Surgeons: "The informed consent discussion should include -1) The nature of the illness and the natural consequences of no treatment; 2) The nature of the proposed operation, including the estimated risks of mortality and morbidity [complications]; 3) The more common known complications, which should be described and discussed. The patient should understand the risks and benefits of the proposed operation. The discussion should include a description of what to expect during the hospitalization and post hospital convalescence; 4) Alternative forms of treatment, including nonoperative techniques; 5) A discussion of the different types of qualified medical providers who will participate in their operation and their respective roles." 

In New York State there are three very specific questions that a jury must answer in order to determine whether a doctor failed to obtain an informed consent, such as: 1) Did the doctor, before obtaining the patient's consent to the operation (or use of medication), provide appropriate information? If the answer is "no", the next question for the jury is: 2) Would a reasonably prudent person in the patient's position at the time consent was given have decided not to undergo the operation (or use of medication) if given appropriate information? If the jury answers this question "no", the informed consent claim is lost. If the jury answers the question "yes", the next question for the jury is: 3) Was the operation (or use of medication) a substantial factor in causing the injury to the patient? In order to win the informed consent claim the jury must answer this question "yes". 

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