Lack of Informed Consent & Medical Malpractice Lawsuits under Personal Injury
⚖️ Lack of Informed Consent & Medical Malpractice Lawsuits
📚 I. Overview: What Is "Informed Consent"?
Informed consent is a fundamental principle in medical ethics and tort law. It requires healthcare providers to:
Fully disclose the nature, risks, benefits, and alternatives of a proposed medical treatment or procedure before obtaining a patient’s consent.
A lack of informed consent occurs when:
A patient undergoes a medical procedure without full knowledge, and
Suffers an injury or undesired outcome they were not warned about.
In legal terms, this is actionable under medical malpractice, a subset of personal injury law.
📌 II. Legal Elements of a Lack of Informed Consent Claim
To succeed in a lawsuit for lack of informed consent, the plaintiff must prove:
Duty: The healthcare provider had a duty to disclose material risks.
Breach: The provider failed to adequately disclose those risks.
Causation: Had the patient been properly informed, they would not have consented to the procedure.
Damages: The patient suffered harm as a result.
🏥 III. Scope of Disclosure Required by Law
A physician must disclose:
The nature and purpose of the procedure
Material risks and side effects (reasonable patient standard)
Probability of success or failure
Reasonable alternatives, including doing nothing
Risks of refusing the procedure
Not disclosing this information, or downplaying risks, can lead to legal liability — even if the procedure was performed correctly.
🧑⚖️ IV. Key Case Law Examples
🔹 1. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)
Facts: A 19-year-old man underwent spinal surgery and was left paralyzed. He was not informed of this risk before surgery.
Holding: The court ruled that the duty to disclose is based on the patient's right to self-determination, not the physician’s judgment.
Key Rule: Introduced the “reasonable patient” standard—doctors must disclose what a reasonable person would want to know before consenting.
Significance: Landmark case that shaped modern informed consent law nationwide.
🔹 2. Moore v. Regents of the University of California, 51 Cal.3d 120 (1990)
Facts: A patient’s cells were used for medical research without his informed consent.
Issue: Was the lack of disclosure about the research a breach of informed consent?
Holding: The court found that the physician had a duty to disclose personal and economic interests that may affect medical judgment.
Significance: Expanded informed consent to include conflicts of interest.
🔹 3. Truman v. Thomas, 27 Cal.3d 285 (1980)
Facts: A doctor failed to explain the importance of a Pap smear and the risk of cervical cancer.
Holding: The doctor had a duty to explain the risks of refusing the procedure.
Key Takeaway: Informed consent also includes the consequences of not undergoing treatment.
🔹 4. Johnson v. Kokemoor, 545 N.W.2d 495 (Wis. 1996)
Facts: A woman underwent brain surgery for an aneurysm and became severely disabled. The surgeon minimized the risk and overstated his experience.
Holding: The court held that misrepresenting the surgeon’s experience and downplaying risks was a breach of informed consent.
Significance: Patients are entitled to information about the doctor’s qualifications when that impacts risk.
🔹 5. Backlund v. University of Washington, 975 P.2d 950 (Wash. Ct. App. 1999)
Facts: Patient underwent vasectomy reversal without being warned about low success rates.
Holding: Failure to disclose success likelihood was a breach of informed consent.
Importance: Disclosure must include outcome probabilities relevant to a patient’s decision.
⚠️ V. Defenses to Lack of Informed Consent Claims
A. Emergency Exception
If the patient was unconscious or incapacitated, and delay would have risked life or health, informed consent may not be required.
B. Therapeutic Privilege
Rare and controversial—allows a doctor to withhold information if disclosure would seriously harm the patient (e.g., cause emotional trauma). Courts apply this narrowly.
C. Patient Already Knew the Risks
If the patient already understood the risk from prior experience or education.
D. Injury Was Not Caused by the Undisclosed Risk
If the harm suffered was unrelated to the undisclosed risk, causation fails.
🧾 VI. Damages in Informed Consent Lawsuits
Economic Damages
Medical bills
Lost income
Future care costs
Non-Economic Damages
Pain and suffering
Emotional distress
Loss of quality of life
Punitive Damages
In rare cases, where the doctor’s actions were reckless or fraudulent
📑 VII. Special Considerations
A. Consent Forms Are Not Always Ironclad
Signing a consent form does not waive liability if the doctor failed to verbally explain key risks.
B. Informed Consent vs. Medical Negligence
A doctor may perform the procedure competently, but still be liable if the patient didn’t knowingly consent.
Thus, a claim for lack of informed consent is separate from a malpractice claim based on surgical errors or misdiagnosis.
🕰️ VIII. Statute of Limitations
Varies by state, but generally:
1–3 years from the date of the procedure or discovery of the injury
Some states have discovery rules, where the clock starts when the patient knew (or should have known) the injury was linked to lack of informed consent
🧠 IX. Litigation Strategy Overview
| Plaintiff’s Focus | Defense Focus |
|---|---|
| Prove failure to disclose risks | Argue patient knew/accepted risks |
| Expert testimony on standards | Use of informed consent forms as evidence |
| Establish causation (no consent) | Claim injury wasn’t from undisclosed risk |
| Emphasize doctor-patient trust | Show professional judgment was reasonable |
✅ X. Conclusion
Lack of informed consent is a powerful legal doctrine that upholds the patient’s right to bodily autonomy and self-determination. Courts emphasize that the decision to undergo medical treatment lies with the patient, not the doctor.
Even when the medical procedure is correctly performed, a doctor can be held liable if they failed to:
Disclose essential risks
Explain alternatives
Describe potential outcomes
Reveal personal conflicts or limitations
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