Picture this scenario: A surgeon convinced a patient to undergo an unnecessary and expensive major surgery even though a small procedure had already proved successful in removing a cancerous tumor.
What if the patient goes into septic shock and dies because the surgeon mismanaged post-operative complications? The surgeon’s medical errors may have caused the patient’s death. Are there any additional arguments that can be made? What if, during the course of discovery, the parties learn that the surgeon did not inform the patient he did not actually need the surgery? Besides the medical errors that contributed to the patient’s death, the root problem would be the surgeon’s failure to obtain the patient’s informed consent.
What is informed consent? Informed consent is a fundamental principle of law and ethics. It consists of two interrelated elements:
First, the patient must consent to the proposed intervention – that is, the patient must knowingly, freely, and voluntarily authorize the intervention.
Second, the doctor must inform the patient. According to the American Medical Association, a doctor must inform the patient of (i) the diagnosis when known, (ii) the nature and purpose of the recommended interventions, (iii) the burdens, risks, and expected benefits of all options, including foregoing treatment. Without this information, a patient cannot be truly informed, and therefore cannot give informed consent, even if the patient signs a consent form authorizing the doctor to proceed.
In Washington, the elements of an informed consent claim are codified at RCW 7.70.065.
In the above scenario, an actual case from Georgia, the surgeon failed to inform the patient that his cancer was already removed and that he did not need the surgery the surgeon was recommending. With this crucial information, the patient would have been able to make best decision for himself – reject the surgeon’s recommendation. The patient would not have consented to an unnecessary surgery had he known the cancerous tissue was no longer in his body.
In conclusion, a patient’s consent is ineffective even when he or she consents to the surgery through the doctor’s breaches of his or her legal and ethical duties to obtain the patient’s “informed” consent.
