Steven E. North, Esq. and Laurence M. Deutsch, Esq.
Before a physician performs a procedure on a patient, particularly surgery, the doctor is required to make a reasonable presentation to the patient of the risks, benefits, and alternatives to the proposed treatment. Guided by the doctor’s advice, the patient is then in a position to give an “informed consent” to proceeding with the recommended procedure.
If a proper informed consent is not provided to the patient and the surgery goes awry, the doctor may be held liable in NY on a medical malpractice claim even if he or she did not perform negligently. The determinate factor as to liability will rest on whether a “reasonable person” presented with full and proper advice, would decline the procedure.
The decision is not based on the subjective position of what the specific person involved would do, although if there is evidence that the individual would proceed under any circumstances, this claim would not fly. What a “reasonable person” would do under the circumstances is a matter to be determined by a jury.
A recent study suggests something worthy of concern to all physicians and patients. In many instances, physicians are either not sufficiently knowledgeable about the statistical probabilities with regard to various treatment options, or they make recommendations based on personal bias. Patients, therefore, may get a skewed view of potential treatments and outcomes.
In my personal experience as a litigator, I find that it is difficult to establish that a physician failed to provide a proper informed consent. The issue often boils down to a “he said-she said” standoff where statistics show that the physician’s testimony is more likely to be adopted by a jury than the patient’s.
Unless the patient-physician conversation about the proposed procedure or treatment is well documented, it invariably seems that by the time the deposition rolls around, the doctor states that he or she provided all of the appropriate options despite the patient’s protestations otherwise. Although a claim of lack of informed consent is most always added to a claim of medical malpractice, stronger prosecution will be founded on the primary underlying claim of direct negligence in the diagnostic or treatment management of a patient rather than on what the patient was told.
The prosecution of a malpractice case based on a lack of informed consent is often handicapped by the “catch-all” consent form which all patients sign before a procedure. These forms are usually very explicit as to the general risks a patient may encounter, often including death, although some of the specific risks are not always delineated. Although an argument may be presented that the patient never read the form before signing it, relying instead on the doctor’s explanation of the risks and benefits of surgery, the defendant will argue that had the patient read the form as he or she should have, he or she would have been aware of all of the relevant risks and benefits. However, just having the signed form is not a total defense.
In most cases, a lack of informed consent claim will be added to a malpractice claim against a physician or hospital so that this cause of action is a secondary thrust of the prosecution and a back-up if the underlying negligence claim fails.
Source: Medscape commentary, “Estimating Risk/Benefits Are A Basic Requirement," January 23, 2017
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