Informed Consent

What it is

Informed consent is the legal and ethical doctrine requiring a healthcare provider to disclose the material risks, benefits, and reasonable alternatives of a proposed diagnostic or therapeutic procedure so that the patient can make a voluntary, knowing decision whether to undergo it. A failure to obtain informed consent can support a malpractice claim independent of any technical error in the procedure itself.

What must be disclosed

The scope of disclosure is governed by one of two standards depending on jurisdiction:

• Physician-based standard: what a reasonably competent practitioner in the same specialty would disclose under similar circumstances.
• Patient-based (materiality) standard: what a reasonable patient would consider material to the decision whether to undergo the procedure.

The trend is toward the patient-based standard, which is generally more favorable to plaintiffs because it focuses on what the specific patient needed to know rather than what the medical community customarily discloses.

Causation requirement

A plaintiff cannot recover simply by showing inadequate disclosure. The plaintiff must also prove that, had proper disclosure been made, a reasonable patient (or, in some states, this specific patient) would have refused the procedure or chosen a different course. This causation element is often the weakest link in informed-consent claims and where defense counsel focus their attack.

In settlement strategy

Informed-consent claims are frequently filed alongside negligent-treatment claims as alternative theories. They add settlement leverage because they offer the jury a path to liability even if the technical-negligence claim is contested.