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What is Informed Consent and How Can it Effect Your Medical Malpractice Case?

Patients must be fully informed by their doctors regarding the risks involved with any medical procedure or treatment. In both law and medicine, when a patient agrees to a procedure or treatment after receiving this information, that agreement is called “informed consent.” If this information is not provided, or if a patient does not give his or her informed consent, and the patient is injured during the treatment or procedure, the patient may have grounds to sue the doctor for medical malpractice.


Generally speaking, what constitutes informed consent, when informed consent is required, and what exceptions can be made are discussed here, but if you believe that you are a victim of medical malpractice in or near the Chicago area, you should discuss the details and the possibility of legal action with an experienced Chicago medical malpractice attorney – Chicago lawyer Joseph M. Dooley.


Every medical treatment and procedure involves some type of potential risk. Doctors are obligated to give patients information regarding a specific procedure or treatment so that the patient can make an educated choice about whether or not to move forward with the procedure or treatment. Providing this information to a patient and obtaining that patient’s agreement to a treatment or procedure is the definition of informed consent.

Physicians usually have their patients sign a consent form that explains in detail the potential risks of any proposed procedure or treatment. However, a signature alone does not conclusively prove that informed consent has been given. First, the physician must have a detailed discussion with the patient regarding the procedure and its risks. The patient must understand the risks he or she is taking.


In medical malpractice cases that arise from medical procedures and treatments, informed consent is often the central issue in the case. Whether or not a patient gave genuinely informed consent to a treatment or procedure is crucial. If a physician fails to obtain informed consent from a prospective patient, and if that patient would not have chosen the procedure or treatment if he or she had been fully informed, the patient may have grounds to bring legal action against the doctor for medical malpractice.


The law is reasonable. Physicians do not have to tell patients about every conceivable possibility that might happen in the course of a treatment or surgery. However, the risks that are likely or important must be disclosed. What does the law consider important? The laws in most of the fifty states use one of two standards to determine what a doctor must disclose to a patient to satisfy the law.

In some states, a disclosure of risks is required when the risks of a treatment or procedure would normally be disclosed by other doctors in the same situation. A patient suing for malpractice in these states will need a medical expert to testify that other doctors would have disclosed a risk that was not disclosed. In response, the doctor/defendant will probably hire an opposing expert to state that other physicians would not necessarily have explained the risk in question. The core issue is whether the risk was likely enough to make the disclosure necessary. Simply because a specific outcome is a remote possibility, it does not necessarily have to be explained in advance.


In medical malpractice cases in other states, the law focuses on whether a typical patient, with the same medical history and condition as the plaintiff, would have made another choice if the risk had been fully disclosed in advance. Unlike states following the first standard, a doctor must also inform a patient of potential alternative treatments in these states, even if the doctor only recommends one treatment.

Illinois courts have made rulings in a number of cases that concern informed consent. In one case, the court held that a surgeon had a duty to disclose his HIV-positive status to a patient before he operated on her. However, the patient was unable to move forward with her claim because she was not infected by HIV and had no injury arising from the doctor’s failure to disclose.

In another case, an Illinois court ruled that a male nurse committed battery when he touched the naked body of a female patient in violation of her religious principles. Because the healthcare personnel involved had been informed previously about the woman’s beliefs, the court determined that the nurse and hospital were liable for intentionally interfering with the patient’s right to accept or decline treatment.

Physicians do not have to provide patients with every detail about everything that is involved in a treatment or procedure or about anything that conceivably might happen. However, doctors must provide true and precise responses to any questions that patients ask. Doctors are not obligated to guarantee the reliability of medical devices they implant, but they must explain any known risks. When they sign informed consent forms, patients must take the time to read the form in full, and if necessary, to ask more questions.


In medical emergencies, there’s usually no time to explain risks when a doctor must act swiftly. Typically, a patient cannot sue for lack of informed consent in this situation, when a doctor acts to save someone’s life, even if the patient would not have consented to the treatment. In cases where a patient is an excessively fragile or distressed person, a doctor may decide to disclose less information – or less precise information – but if the doctor is sued for malpractice, he or she must be able to give a clear reason why any risks were not disclosed.


If for any reason a doctor performs the wrong procedure after receiving informed consent for another procedure, a patient can usually pursue a medical malpractice lawsuit based on that patient’s lack of an opportunity to consent to the procedure that was actually performed, even if that procedure was a success. However, a patient only has grounds for legal action if the different procedure was a mistake or was clearly unnecessary.

If a doctor discovers a different and serious medical problem during the course of a treatment or a procedure and acts to deal with that medical problem, a patient probably has no claim for lack of consent. For example, if a patient consents to a heart valve procedure, and during the operation, the doctor finds another problem with the heart, the doctor may act on that problem without obtaining separate consent.

Medical malpractice law is complicated and varies considerably from state to state. If you believe that you or someone you love has been a victim of medical malpractice in or near the greater Chicago area, discuss your legal rights and options at once with Chicago medical malpractice attorney Joseph M. Dooley. Email him at [email protected] or call 312-236-7282.