Medical Malpractice Cases: Lack of Informed Consent

One of the least-discussed forms of medical malpractice is medical malpractice arising from a lack of informed consent. The lack of awareness of this topic is unfortunate because, in a day and age rife with financial conflicts of interest for doctors, informed consent medical malpractice may be one of the most common forms of medical malpractice.

Except in situations where a patient cannot give her informed consent to treatment -- such as when the patient arrives at a hospital unconscious and with serious injuries -- doctors have a duty to obtain a patient's informed consent prior to beginning any treatment.

A doctor fulfills his duty to obtain informed consent primarily by disclosing information to the patient and making sure that the patient consents to the treatment after being educated by the disclosure.

What information must a doctor disclose to his patient in order to obtain informed consent? The specific information varies according to the procedure or treatment the patient is to undergo. But the legal rule is general and unchanging: "A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure." Martin v. Lowney, 401 Mass. 1006 (1988).

In layman's terms, this means that your doctor has to disclose to you every piece of information about the course of your treatment which is important enough to affect your decision to undergo the treatment. Thus, a doctor has a duty to disclose to his patient potential complications arising from a surgery if the complications would be serious enough to affect the patient's decision to go ahead with the surgery.

Medical malpractice arising from a lack of informed consent differs from all other forms of medical malpractice in that a doctor can perform a treatment or surgery in a technically flawless manner but still be liable for medical malpractice. Let's assume that, prior to a surgery, a doctor fails to warn the patient about a complication that might arise, a complication important enough that, had it been disclosed, the patient might not have chosen to go forward with the surgery. Then let's assume that the surgeon performs the surgery in a technically flawless manner, such that no surgeon in the world could have performed the surgery any better.

However, despite the surgeon's technical skill in performing the surgery, the patient nevertheless experiences the complication about which the doctor failed to warn him. As it happens, the complication is something that no amount of skill or surgical ability can prevent in certain cases.

In such a scenario, the surgeon is still liable for medical malpractice even though there was no negligence in how he actually performed the surgery. Aceto v. Dougherty, 415 Mass. 654 (1993) ("Insofar as a failure to provide informed consent is medical malpractice, entitling one to recover, it is to cover those situations where there was no other malpractice, but rather the actual occurrence of an untoward event which was a material risk, which occurred, (not because of negligence), and which should have been disclosed and consented to."). In a way, the doctor's liability in such a situation is remarkable from the standpoint of medical malpractice law as a whole. The standard definition of medical malpractice is conduct that falls below that of the "average qualified physician." Brune v. Belinkoff, 354 Mass. 102 (1968). The surgeon in our little hypothetical did not perform the surgery in a manner that fell below that of the "average qualified" surgeon. In fact, he performed a best-in-the-world surgery.

How then did the surgeon commit medical malpractice? By falling below the standards of the "average qualified surgeon" in how he disclosed the risks of surgery. Informed consent medical malpractice addresses whether the doctor fell below the standards of the profession in making disclosures; it is not concerned with how the doctor actually performed the treatment and flawless administration of a medical treatment or procedure does not remedy defects in advance disclosure and warning to the patient.

For many people concerned with the state of our health care system and medical ethics, lawsuits premised upon a lack of informed consent have the greatest power to transform the practice of medicine. Today, the practice of medicine is rife with conflicts of interest which are often not disclosed to patients: for example, your surgeon might not disclose to you the fact that he earns a massive commission on the brand of medical device which he implants in you or that he is paid for touting the drug which he prescribes to you.

Historically, such conflicts of interest were fodder for medical ethics seminars but were not the domain of medical malpractice law. However, these ethically dubious practices, and the injuries resulting from them, can be redressed under medical malpractice lawsuits premised upon a lack of informed consent. Under Massachusetts law, physicians and hospitals have a duty to disclose their financial interests in a treatment to the patient. Darke v. Estate of Isner, 17 Mass. L. Rep. 689 (2004) (duty to obtain informed consent requires a physician and hospital to disclose their financial interests in an experimental therapy); Darviris v. Petros, 442 Mass. 274 (2004). Failure of doctors to disclose their financial stake in a treatment or therapy, can constitute medical malpractice.

If you suspect that you suffered an injury due to a lack of informed consent in your medical treatment, call or email The Law Office of Alan H. Crede, P.C.