What is informed consent? In the personal injury context, informed consent is when physicians inform patients of the risks of procedures before engaging in any medical treatment. The point is to let the injured party make an informed decision before agreeing to any medical procedure. In theory this makes sense, but unfortunately the application gets muddled as it requires agreement from both the legal and medical professions on what type of information should be presented to the patient.
According to Illinois law, medical professionals must provide informed consent forms with other relevant medical disclosures to indicate that the patient was informed about the procedure. A failure to do so would mean the patient has a medical malpractice negligence claim. In order to establish a lack of informed consent, the plaintiff will have to prove the medical professional failed to disclose significant material information. Such information would be of the type that would make a patient elect a different choice. For example, the information would make a patient decide not to have the procedure if it had been disclosed. Most states require testimony by an expert witness (a physician, nurse, or whoever was required to inform the patient) as to whether the patient was adequately informed.
The problem with informed consent law is that the legal and medical professions are not completely in agreement with regard to what type of information is material to the patient. As a matter of fact, one physician, Dr. Harlan Krumholz, believes for many patients informed consent is a scam. He cites a study where patients signed consent forms for an elective percutaneous coronary intervention, a procedure the patients thought would prevent a future heart attack, when in reality the evidence for that has not been proven. He also notes that many times patients give consent under precarious conditions, like when they are sedated before a procedure.
Legal and medical professionals need a consensus on what informed consent actually means. It is time for such information to be standardized since many procedures do not vary from state to state. It will also help manage medical costs as patients will be more aware of unnecessary procedures. We can also reduce the cost of litigation as we can identify violations much more clearly with hospitals and medical professionals.
This article is for informational purposes only and is not to be construed as legal advice. Your case may be different. Hiring an attorney immediately will protect your rights. Consult an attorney in your area for further guidance.