Informed Consent and Medical Malpractice Claims

Anyone who is preparing to undergo a medical treatment or surgery should go through the informed consent process.

However, while statistics aren’t readily available, physicians likely fail to perform this required pre-operative procedure when treating patients. Doing so violates a doctor’s duty of care per a court ruling cited in a study published by the National Institutes of Health (NIH) in 2023, yet it happens nonetheless.

Another study published by the NIH in 2004 suggested that the “lack of informed consent can reinforce a claim of medical malpractice.”

Below, we’ll delve deeper into what informed consent is, when it must be performed, and by whom.

We’ll also describe the dangers associated with doctors failing to consent patients and how situations like these often lead to the filing of a medical malpractice claim.

What Is Informed Consent?

If your initial inclination is that the documents that you sign as part of the new patient paperwork when you initially see a medical provider is what an informed consent process is, it’s not. That’s just the consent to treat documentation that essentially gives them their permission to evaluate you.

Informed consent is a set protocol generally taken with established patients where there’s a suspected diagnosis and further testing or treatment, a surgical procedure included, needs to occur.

Medical professionals often refer to this process among themselves as “consenting a patient.”

When Must Doctors Perform This Protocol with Patients?

Illinois law, specifically 20 ILCS 301/30-5, outlines how medical providers must perform the informed consent process before non-emergency medical procedures.

This generally means that healthcare providers must perform the informed consent process before the following procedures (and others):

• Giving a patient a vaccine
• Administering anesthesia
• Taking a biopsy
• Performing a surgical procedure or operating on a patient
• Giving a patient a blood transfusion
• Administering chemotherapy or radiation

There are some rare instances in which securing a patient’s consent is unwarranted, such as in life-threatening or emergency situations and when a patient is unconscious, and there’s no health care directive in place, nor is their healthcare proxy available to voice their treatment preferences.

What Does Consenting a Patient Entail?

This protocol involves outlining the following:

• Diagnosis a patient has
• The treatment option is being recommended
• The patient should expect an outcome from following a certain course of treatment
• Side effects of that treatment option are
• The benefits and risks of not receiving the recommended course of treatment
• Alternatives to receiving the recommended treatment

The medical provider who performs the consenting process must inquire to make sure that their patient understands the information being relayed to them and that they’ve answered any questions their patient had to qualify as a properly performed informed consent process.

Which Health Care Professionals Must Have Consent from Patients?

According to this study published by the NIH, the responsibility to secure a patient’s informed consent rests wholly on the shoulders of the treating physician.

While the article goes on to explain how other medical professionals, such as nurses, can perform the informed consent process, it also explains that, if they do it incorrectly, that constitutes a breach of the physician’s duty or standard of care to the patient.

What Is the Connection Between Informed Consent and Medical Malpractice?

As you likely noticed in the description of who is responsible for performing the informed consent process, if someone other than the treating doctor performs it incorrectly, then that physician could be held liable for any adverse outcomes that arise.

As an example, if the patient suffers a perforated liver during a gallbladder surgery for which the informed consent procedure was carried out incorrectly by a nurse, they could legitimately sue the doctor for their failure to perform their duty, the informed consent to warn them of this potential danger.

Other situations where some aspect of the informed consent process may lead to a patient or their surviving loved ones filing a medical malpractice lawsuit, especially if there’s an unexpected outcome, include:

• If a doctor moves forward in performing a certain procedure on a child, the person who’s previously been deemed incapacitated by the court, or an unconscious person who has a health care power of attorney or directive in place without performing the informed consent with the person lawfully able to provide it.
• An OB/GYN could be so intent on complying with mom’s request to deliver their baby vaginally that, while they suggest performing a C-section on the patient, the doctor skips over the benefits of the procedure, such as ensuring the baby isn’t subjected to any further distress in the womb. Later the baby is born vaginally with cerebral palsy.
• When a physician seemed so intent on getting a patient to commit to one treatment option that they neglected to inform them of the least risky options that could offer a better outcome and would have been the course of treatment, similarly trained doctors in the area would have recommended instead.

There are various other situations where failures to perform every step required in the informed consent process could result in a patient making an uninformed decision that leads to them sustaining unexpected and completely preventable harm.

What Your Options Are If Your Medical Team Didn’t Properly Consent You for Care

A different article published by the NIH from the one referenced above describes informed consent as an “ethical and legal obligation” that medical providers have. It further states that the concept originated from the philosophy that patients should have a “right to direct what happens to their body.”

Here at Prince Law Firm, we regularly work with patients who have been failed by medical professionals that they entrust with their health and safety. We request medical records and take eyewitness statements as needed to identify whether their doctors or other care providers breached their standard of care and, if so, file suit to hold them accountable for those violations of their duties.

We want to help you do the same if a doctor or other medical provider’s failure to adequately get your consent to treatment caused you to suffer unnecessary harm to your health.