Posted by John Ager on 29 August 2012.
Before a doctor performs any kind of significant medical procedure on a patient, he or she must obtain that patient’s informed consent, or risk a potential medical malpractice claim. That means that the patient must be made aware of the potential risks and benefits of the procedure. This gives the patient the information necessary to make a meaningful decision about whether the risks of a procedure outweigh the benefits for that patient. The information is generally communicated to the patient both verbally by the doctor and in a form the patient is asked to sign documenting the potential risks. There can be significant risks inherent in almost any procedure and, for most procedures, a patient will be informed that anything can happen, even death.
Some folks mistakenly believe that once they give informed consent, the doctor can have no liability if anything goes wrong during a procedure. This is only true, however, when the patient is informed of the particular risk and the doctor does nothing wrong. If a doctor’s mistake causes a problem, he or she is responsible to the patient, even if the harm is otherwise a risk of the procedure.
It is exceedingly rare for a medical negligence case to succeed solely on the grounds that a physician failed to obtain informed consent because the patient must first prove that the doctor failed to obtain informed consent. Then they must prove that they would not have undergone the procedure if the doctor had told them about the risks. Most of the time the risk of a significant injury will be small when compared to the potential benefit. For example, there is always a risk of blindness during a cataract surgery, yet thousands of people have the surgery each year because the risk is low and the benefit of improved sight is tremendous. In this example, even if a person were able to prove that a surgeon failed to communicate this risk, it is unlikely a jury would believe the patient would have decided against it except in the most unusual circumstances.