Informed consent is an important issue for medical malpractice, and more importantly, for high quality medical care. But it’s widely misunderstood.
What Informed Consent Means
Everyone who has had any medical or surgical procedure has signed a consent form — usually lots of intimidating words, small print, hard to read, and seldom explained well. Consent forms have about as much relationship to the important legal concept of “informed consent” as orange crayons have to navel oranges. There’s a little overlap, but not much.
Informed consent expresses a concept at the core of any free society: Each person has a right to decide what to do with his or her own body, as long as you don’t hurt someone else. That includes medical care.
But this is a right that many scared people are quick to give up. They want to surrender the decision to the doctor, not realizing two critical facts:
The doctor may have very different values and tastes. For example, the doctor may not care whether a surgery disfigures the body if it offers a slightly higher chance of living some uncertain additional amount of time.
The doctor may have a conflict of interest that makes it hard to give objective advice. For example, the doctor may make a lot of money if you opt for his surgery and no money at all if you make a different choice.
Why We have Informed Consent
Knowing that doctors are just as flawed and imperfect as everyone else, but that they know a lot more medical facts than most lay people, the law and medical ethics place a simple duty on every doctor:
Give the patient the important facts so the patient can make an intelligent decision about what treatment to have and where to get it.
That’s why the word “informed” comes before the word “consent.” Information comes first. Consent is meaningless without the facts.
Another common misconception about informed consent is that the doctor has a duty to scare the patient to death, run down every horrible thing that could happen, and then put pen and paper in front of the now quivering patient.
Informed consent is really about building a bond between the doctor and the patient, through a candid dialog that doesn’t leave out anything important.
Dr. Pauline Chen wrote a helpful column on informed consent in the New York Times. She said, quoting another doctor: “Informed consent is about forging a partnership with the patient.” She also quoted retired surgeon and bioethicist Dr. Martin F. McKneally about the “leap to trust” that patients make when they decide to accept a doctor’s recommendation.
But trust is built on honest information. It’s not a leap of blind faith that we’re talking about.
Patrick Malone has also written for his fellow attorneys on the importance of pursuing informed consent claims. See “The Power of Informed Consent,” by Peter Mullenix and Patrick Malone, Trial magazine, December 2020. While this article is written for lawyers, it also talks about many of the ideas presented to patients on this page of the Malone firm’s website.
Conflicts of Interest and Sending the Patient to Someone with More Skills or Experience
Where it gets really sticky and awkward is when the doctor has a conflict of interest that he or she doesn’t want to talk about – or, often, has rationalized his or her brain into deciding that it’s trivial. If the doctor has any kind of financial interest in the patient’s decision, that can cloud judgment, and should be candidly revealed. Patients often feel too awkward to ask the right questions.
Should a surgeon be required to disclose lack of experience?
Only a few courts around the country have decided whether doctors have a legal duty to inform patients that another doctor might have more skill and experience performing a planned surgery. One of them is Maryland’s highest court, the Court of Appeals, thanks to a client of Patrick Malone named Billy Boone who suffered brain damage after an ear surgeon punched a hole into Mr. Boone’s brain. The decision is called Goldberg v. Boone, and it’s in the official case reports at 393 Md. 242, 900 A.2d 749 (2006). Read his true story here.
What Is Important Information? The Two Dueling Legal Standards
What information do patients need to know to make an informed decision about a proposed surgical or medical treatment? And who decides what is important? Courts have developed two very different approaches.
The patient-centered standard asks: “What would a reasonable patient have wanted to know about this proposed treatment?”
The doctor-centered standard asks: “What do doctors customarily tell patients about this proposed treatment?”
Most states have adopted the patient-centered standard through the common law precedents in their courts. But some have the physician-centered standard.
One practical difference between the two approaches is that the jurors become the experts in the patient-centered standard. They are, after all, “reasonable patients.” The doctor-centered standard requires lawyers to call expert witnesses to testify about what doctors do and do not disclose. And it tends to be more restrictive, because as you can imagine, doctors often think patients need far less information to decide on treatment than patients want.
The patient-centered standard does not mean that the jury automatically votes for the patient in an informed consent malpractice lawsuit. Jurors are typically skeptical of someone who complains: “If I’d only known about this rare complication, I would not have had this surgery.”
On the other hand, jurors tend to be more receptive to plaintiffs who were deprived of basic consumer-oriented information, such as safer alternative ways of doing the procedure, or the availability of more experienced surgeons.
When a doctor has a hunch that his patient would receive better care elsewhere, should he inform the patient and send him to another provider?
Research has shown that facilities that perform high volumes of a certain procedure do it better than those that perform the procedure less frequently. Read more…
Here are some suggested questions for your conversation with the surgeon before you make a final commitment.
What’s the best possible outcome? (Sometimes it’s not so hot, and it makes you rightly question if the treatment is worth the pain and trouble and risk.) Read More…
Consult with an Experienced Malpractice Attorney
If you believe you or a family member has been seriously injured from medical malpractice, medical error, or neglect by a doctor, hospital, nurse, clinic, nursing home or other health care provider, you may want to click here to contact an experienced medical malpractice attorney for a free evaluation of your case. You can also email us at info@patrickmalonelaw.com or call us at 202-742-1500 or 888-625-6635 toll-free. We will respond within 24 hours. There is no charge for our initial consultation.
