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

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

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.