What Is Informed Consent?

Consent is a verbal or written affirmative indicating that you agree to a specific treatment, test, or other medical event. But informed consent can only come from a conversation. Medical care providers are obligated to communicate with their patient about their condition and treatment options in a way their patient can understand so the patient can make a knowledgeable decision regarding their medical care.

The American Medical Association’s Code of Medical Ethics states that, “Informed consent to medical treatment is fundamental in both ethics and law. Patients have the right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care.”

Laws vary by state, but in general consent is required for any procedure or treatment that involves risk to the patient. Patients must be informed of these risks before agreeing for informed consent to have occurred. Surgery, biopsy, use of anesthesia, chemotherapy, blood transfusions, and procedures involving students are some examples of medical procedures which require informed consent in Georgia. If a patient isn’t offered honest information and assessments, and isn’t informed of the risks to their treatment options, they can’t make an informed decision about their medical care and future health.

Why Is Informed Consent Important?

Informed consent protects both the patient and the medical provider. Patients need to know about the risks involved in what’s being proposed so they can make knowledgeable decisions about their medical care and the risks to their body and life. Caregivers can’t be sued if they had a discussion with a patient about the risks, received informed consent, and then the treatment lead to a bad result.

If a doctor prescribes a medication and doesn’t inform the patient that the medication could lead to birth defects or miscarriage, they did not obtain informed consent. This happened to one of my clients, and I helped her to sue her doctor for medical malpractice. We went to court and won our case. The compensation can’t give her back a healthy child, but it does hold her doctor accountable for his negligence.

While most healthcare providers want to provide adequate information to their patients about the risks being proposed, human error, an overburdened system, and other factors can lead to scenarios where a patient isn’t properly informed of the risks. There may also be a barrier to informed consent if the medical provider and patient don’t speak the same first language or if the information provided contains medical jargon that makes the full meaning too difficult for the patient to understand. I’ve also seen cases where a person consented to having surgery at a teaching hospital, but didn’t know students or residents would be involved in their surgery, or that other, medically unnecessary procedures like gynecological exams might be done by students while they are still under anesthesia. The latter information is often contained in fine print, but patients may be pressured to consent on a short timetable that means they aren’t able to read the fine print fully.

What Happens if I Can’t Give Consent?

If the patient is incapable of giving informed consent, their next of kin—often their spouse, adult child, or parent—is given the opportunity to do so. If no next of kin exists or can be reached and the patient’s life is in imminent danger, medical staff can act in the best interests of the patient to save their life, but not to treat their underlying condition. For example, if a person is experiencing a stroke, staff can act without their consent to try to save their life, but they can’t conduct surgery to remove the cancer that led to the stroke. If they were in a car accident, staff can do surgery to repair their body to save their life, but if blood tests suggest colon cancer, they can’t do a colonoscopy without the patient’s informed consent.

Or let’s say your parent is in the hospital with an unknown illness, and they aren’t mentally capable of giving informed consent. Maybe they have dementia or Alzheimer’s, or maybe they aren’t in a lucid state due to low blood sugar, dehydration, or a UTI. In these instances, the staff would go to your parent’s spouse if available or to you for consent about any procedures or treatments that involve risk to the patient. Again, there should be a conversation about the proposed treatments and procedures so you can make an informed choice on your parent’s behalf.

Can I Sue for Lack of Informed Consent?

Yes, you can sue for lack of informed consent if you were injured during the treatment or procedure. You can also sue if your loved one died because they didn’t or couldn’t give informed consent. Medical malpractice occurs when a healthcare professional or medical institution (like a hospital, doctor’s office, or nursing home) causes an injury to a patient through an act or a failure to act. Not obtaining informed consent, either by going against the patient’s stated wishes or by not properly informing them of the risks, is the “failure to act” that allows a patient to sue. If a medical professional obtained consent but the patient was mentally incapable of understanding and remembering what they were agreeing to, and the patient was injured, this is also medical malpractice.

You can’t sue if you weren’t informed of the risks but don’t suffer an injury (though I would suggest you report them to their medical board and employer for unethical conduct). It seems unfair that you can’t sue for not obtaining informed consent, even if you weren’t injured, but the courts are concerned with what they call actual injuries or actual damages. Actual injuries can be quantified and described, photographed or demonstrated in some way. This makes it provable that you suffered because of someone else’s conduct. Learning you may have been paralyzed by a surgery only after you received it is a frightening and unsetting situation. You absolutely should have been informed of that possibility beforehand when you were weighing the risks of surgery. But if you didn’t become paralyzed, you can’t sue over it.

How Do You Make Sure You’re Being Informed?

Informed consent can only come after a conversation with your medical provider. If the provider tells you how they want to treat you or a procedure they think would be helpful but don’t offering you more information, ask questions. You might start with, “Can you tell me more about that?” Ask them what unfamiliar terms mean. If their explanations are going over your head, say so. It may be uncomfortable, but your health is the most important thing during those conversations, and all medical providers should agree with that. It’s also the medical provider’s job, and their ethical and legal obligation, to inform you of everything you need to know to make a knowledgeable decision.

Let’s say you are caring for your mother and an ultrasound tech comes into the room to look at her heart via sonogram. After a few minutes, the tech tells you she can’t see everything she wants to and would like to give your mother an injection of dye that would color the affected area and make the sonogram easier to read. Then the tech tells you that the injection can’t be given without written consent, but doesn’t offer more information. This is when you should start asking questions. What are the possible side effects? How uncomfortable will my mother be as a result of the dye or the length of the process? How long does the dye last? What do you hope the dye will show? How likely are the side effects? Based on these answers, you can ask more questions and inform the tech of any information you think might mitigate or affect their suggestion. If you learn the dye could cause temporary back pain, tell them that your mother’s back is already hurting her and you don’t want her to be more uncomfortable. Then you might ask how likely it is that the dye will show something that will change the treatment plan. If you consent to use of the dye, you’ll have a full picture of the possible risks as well as the benefits, which would be informed consent.

It’s hard to know what questions to ask in the moment when you’re stressed, caught off guard, and may be running on little sleep. If you’re not sure what to ask and the medical provider isn’t offering more information, start by asking them to tell you more about the procedure. Also ask, “Why is consent required?” or “What are the risks?” You can also ask for time to think about it, then do your own research to learn more. Only in very dire circumstances should they push you for a quick decision, but the realities of these circumstances should also be part of the conversation.

If you are in a clinic or doctor’s office, ask about possible side effects. If you’re suspicious of the effectiveness of the proposed treatments or worried about the severity of the side effects, remind your provider of your other conditions and medications you are taking and ask if these will affect the treatment being suggested or if they’ll be affected by the treatment. Tell them you want to think about it and ask how it would be best to inform them of your decision when you’re ready.

How Do I Know if My Loved One Gave Informed Consent?

Medical providers are obligated to document when a conversation with a patient took place that involved consent, either given or denied. If your loved one passed away because of a procedure or isn’t capable of telling you if they gave informed consent, ask for copies of your loved one’s medical records. In the medical notes, discussion of informed consent may read like this: “Patient was informed of risks associated with cardiac catheterization and gave consent.” Or, “I informed the patient that failure to treat the blockage could result in another cardiac arrest and she gave consent to the procedure.” Or, “Patient asked about the effectiveness of the testing and of possible treatment outcomes. When informed that the treatment would be the same, he refused the testing and agreed to the treatment.” A lack of this kind of information is a warning sign. Even in doctor’s offices, this kind of documentation should exist for every patient interaction. If your loved one was prescribed a medication that ended up injuring them, ask for copies of their medical records and try to learn how long the appointment lasted. A five-minute appointment probably wasn’t enough time for diagnosis and a full conversation about the risks associated with this type of medication.

Doctors and nurses who have committed medical malpractice will often try to cover their tracks, so if you have any hesitations, trust your instincts. You can always fire any medical provider, even doctors or nurses at a hospital. If you are in a hospital, document everything, including the time of day people enter the room, how long they stayed, and what treatments are given at what time. Write down everything you can remember about your discussions with all medical personnel. Once your loved one is out of the woods, gather up every piece of documentation you have and come see me. I offer free consultations and, with my background as a critical care nurse, I can tell when something isn’t right or doesn’t make sense in medical records. I left nursing when a doctor made a mistake that hurt a patient and then blamed the error on a nurse. After almost 3 decades as a medical malpractice attorney, very little surprises me. I would love to put all my professional expertise to work for you, even if it’s just to give you peace of mind.

Are You Ready to Work with Dellacona Law?

Client Testimonial

We feel she made our future brighter despite what had happened. We cannot thank Tracey enough for representing us during this life changing ordeal. WE would highly recommend her to anyone. She and her staff are not just our lawyers, but they are our friends.
– Janice C.

Memberships & Associations

Tracey L. Dellacona

Rated by Super Lawyers

loading …

Are you ready to work with Dellacona Law?