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Experienced New England Attorneys

Informed Consent in a Medical Setting


patient signing ICMost doctors and patients have heard about informed consent, but very few of them have a clear understanding of what it means.  Part of the confusion stems from the fact that the concept of informed consent has different meanings in different settings.  When doctors speak of informed consent, they mean the process by which patients are given medical information about their condition and treatment.  When lawyers use the same phrase, they mean a legal cause of action that has specific proof requirements that vary from state to state.  The difference is important if you are thinking about a medical malpractice claim.  It’s not as simple as proving that the doctor didn’t tell you something.

Historically, doctors made decisions about a patient’s medical treatment without consulting the patient.  The rationale was that the doctor had the medical training, the doctor knew best, and that a patient would not think to question a doctor’s judgment.  Over time, that has changed, particularly where there is more than one reasonable course of action: whether to treat with medication or surgery, whether to watch a condition or treat it, whether to perform an elective surgery, among others.  Doctors now understand–and the law recognizes–that patients, not doctors, have the right to make those types of decisions.

Many organizations have attempted to help patients and doctors through the process of shared decision-making.  One independent research group, the Informed Medical Decisions Foundation, has created a series of  “decision aids” to help doctors focus on what’s important to patients in making treatment decisions, including what may be the effect of particular choices on a patient’s quality of life.  The American Medical Association emphasizes to physicians that the informed consent process is not just a formality.

Despite these efforts and warnings, many in the medical profession have lost sight of the purpose of informed consent, and often treat the important process of shared decision-making as just one more item to be checked off the list.  Doctors and hospitals have developed standard forms that contain vague and general listings of the worst risks imaginable–paralysis, brain damage, death–as well as more common complications such as organ injury or infection.  For the most part, these forms are used for a wide variety of patients and treatments, and there is little, if any, effort to tailor the form (or the information) to the particular patient or treatment at hand.  They look like exactly what they are: an attempt to avoid legal liability, rather than a genuine effort to inform the patient.

Patients, too, have become desensitized to the process, as they become accustomed to signing forms full of fine print, often containing both medical and financial information, without reading the form or questioning the health care provider.  If the treatment goes smoothly and the patient does well, this wink-and-a-nod approach to informed consent goes unnoticed.  But when something goes wrong, the health care provider may find that it doesn’t have the legal protection it would like, while the patient, quite understandably, may feel that the informed consent process was given short shrift.

And when that happens, the patient often calls a lawyer.  That’s where the disconnect between medicine and law comes into play.  Even if the patient was truly unaware of a potential risk or complication, that’s not necessarily enough to bring a claim for lack of informed consent.  Check back later this week for a discussion of informed consent in the legal sense.

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