Informed Consent Liability & Lawsuits: 3 Ways to Get Sued

You know that obtaining written informed consent is vital to avoiding lawsuits, but do you know where the legal vulnerabilities actually lie? Understanding three common types of informed consent lawsuits will help you audit your own processes so you can stay out of court.

The doctrine of informed consent requires healthcare providers to inform patients of the risks, benefits, and alternatives of a proposed treatment. Legally, patients must have firsthand knowledge of their treatment options and the likely consequences of those choices, which allows them to make more informed choices. Patients are afforded the right to refuse proposed treatments for any and all reasons, including religious preference, an unwillingness to endure likely pain, or a discomfort with using general anesthetics when localized ones are sufficient.

When a physician or other healthcare professional fails to obtain the patient’s informed consent before proceeding with treatment, the patient can file a lawsuit (also called a civil action) against that provider. Below, we examine three areas in which providers may be susceptible to lawsuits in the realm of informed consent.

Lawsuit #1: Medical Malpractice for a Failure to Obtain Informed Consent

A failure to obtain informed consent can create substantial liability for a physician or practice, including a lawsuit which alleges that the provider failed to obtain legally sufficient informed consent – a form of medical malpractice in many jurisdictions.

In the realm of healthcare laws, a patient’s right to be informed of the risks of treatment might be compared to a criminal defendant’s Miranda rights (“you have the right to remain silent…”). A practice that forgoes this necessary pre-treatment discussion will almost certainly find itself embroiled in civil action. A proper informed consent discussion might include these elements:

• An explanation of the patient’s diagnosis and prognosis;
• The nature of each of the available treatment options;
• The anticipated risks and benefits of each available treatment option;
• Any potential alternative treatment options;
• The potential risks and benefits of alternative treatment options;
• The risks and benefits of refusing treatment.

When the patient is a minor or a dependent adult, the patient’s legal guardian or parent typically provides informed consent on their behalf. Depending upon the diagnosis and treatment, the minor or dependent patient’s consent may also be required.

Lawsuit #2: Negligent Infliction of Emotional Distress

A healthcare provider who fails to obtain informed consent might also be sued for negligent infliction of emotional distress. Essentially, this means that the physician’s negligence led to the patient’s emotional distress.

This cause of action allows an injured party to recover damages when emotional suffering is negligently inflicted by another party. A physician may believe that their experience and education makes them best-suited to making a patient’s treatment decision, but if that provider negligently overlooks this important process, a lawsuit may soon follow. Others have documented that physicians who disregard the wishes of patients can trigger an infliction of emotional distress that may require years of psychiatric treatment.

Lawsuit #3: Loss of Consortium Claim by Patient’s Partner

A physician who fails to obtain a patient’s informed consent may also be sued by the patient’s partner for loss of consortium. If a patient’s treatment results in illness or injury, the patient may argue that they would have made a different treatment decision if the physician had first secured their informed consent. The patient’s partner may then have a loss of consortium claim, which means that the partner has lost the patient’s intimacy and enjoyment of company because of the provider’s misconduct.

Informed consent is a conversation, not a form.

Informed consent should always be a conversation – not merely a form. This discussion between a patient and provider should allow ample opportunities for questions, and the patient should demonstrate a clear understanding of the path forward. Only after the patient’s physician has explained the risks, benefits, and alternatives of each treatment option can the patient make an informed treatment decision and provide legally sufficient informed consent.

Jackson LLP’s dedicated healthcare attorneys often educate practices about appropriate informed consent procedures. This might include staff training, the establishment of practice informed consent policies, and new informed consent forms that mirror the legal requirements. Through proper documentation and procedures, providers can help shield themselves from civil and even criminal liability.

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