Healthcare providers are legally obligated to fully inform patients about proposed treatments, surgeries, and medications. Failure to do so may lead to medical negligence claims based on a lack of informed consent. Here we outline the legal principles of informed consent and informed consent negligence, along with relevant examples.
What is informed consent?
Informed consent is the process where a person voluntarily agrees to a proposed course of action, such as a medical treatment or participation in research, after being fully informed of the potential risks, benefits, and alternatives. It requires that the individual understands the information presented, has the capacity to make decisions, and is not subjected to coercion or undue influence. Informed consent is a fundamental ethical and legal requirement, ensuring that individuals make decisions about their health based on clear, comprehensive information.
What are valid methods of obtaining informed consent?
Valid methods include written consent, where individuals sign a document outlining the relevant information, and verbal consent, where consent is given orally after the information is provided. Consent may also be obtained electronically through digital platforms. Regardless of the method, the process must ensure that the individual is fully informed, understands the information, and gives consent voluntarily. In some cases, witnessed consent or the involvement of legal representatives may be required.
What is informed consent negligence?
Informed consent negligence refers to a legal concept in medical malpractice where a healthcare provider is alleged to have failed in their duty to adequately inform a patient about the risks, benefits, and alternatives of a proposed medical treatment or procedure. This negligence occurs when the patient, as a result, undergoes the procedure without fully understanding the potential risks or consequences, which may lead to harm or injury.
Key elements in informed consent negligence claims include the following:
- Failure to disclose information – The healthcare provider did not adequately explain all relevant risks and alternatives.
- Causation – The patient would not have consented to the procedure if they had been fully informed of the risks.
- Harm or injury – The patient suffered harm or injury as a direct result of undergoing the procedure or treatment that they were not properly informed about.
How is it possible to prove negligence?
The investigation of informed consent negligence claims involves obtaining the patient’s medical records, witness statements from the patient and anyone present during discussions with the doctor, and expert evidence from independent medical professionals. These will help assess whether the patient was given appropriate information about risks and treatment options, and if there is a valid case against the healthcare provider.
What are examples of informed consent negligence?
Here are some examples where a patient may have grounds to bring a medical negligence claim due to a lack of informed consent.
Surgical procedure with undisclosed risks
A patient undergoes a spinal surgery to alleviate chronic back pain. The surgeon explains the benefits of the procedure but fails to mention a significant risk of paralysis. The patient, unaware of this risk, consents to the surgery. Unfortunately, complications arise, and the patient suffers partial paralysis. In this case, the surgeon’s failure to disclose the risk of paralysis may be considered informed consent negligence, as the patient was not adequately informed of a potential consequence that might have influenced their decision.
Experimental treatment without disclosure
A doctor suggests an experimental cancer treatment to a patient but does not explain that the treatment is still in the trial phase and has not been proven effective. The patient undergoes the treatment, which causes serious side effects without providing any benefit. If the patient was not informed about the experimental nature of the treatment and its potential risks, this could be a case of informed consent negligence. The patient might argue they would have chosen a more conventional treatment had they known all the facts.
Failure to disclose alternative treatments
A doctor recommends a surgical procedure to treat a patient’s knee pain but does not disclose that physical therapy and medication are viable alternatives with fewer risks. The patient consents to the surgery, believing it’s the only option. After the surgery, the patient develops an infection and other complications. If the patient can demonstrate they would have opted for a less invasive alternative if they had been informed, this could be considered informed consent negligence.
Failure to explain possible long-term consequences
A woman is advised by her doctor to undergo a hysterectomy for the treatment of fibroids. The doctor explains the immediate risks and benefits but does not discuss the potential long-term impact of the surgery, such as hormonal changes or early menopause. After the surgery, the patient experiences severe hormonal imbalances and emotional distress. If she can show that the doctor failed to inform her of these long-term consequences, she may have a case for informed consent negligence.
Non-disclosure of medication side effects
A doctor prescribes a new medication to a patient with a history of heart disease. The doctor does not mention that the medication has a risk of increasing heart problems. After taking the medication, the patient suffers a heart attack. If it can be proven that the patient was not warned about this specific risk, the doctor could be held accountable for informed consent negligence.
These are just a few scenarios where a negligence claim may be viable on the basis of a lack of informed consent. There are, of course, many other scenarios where a claim may be valid.
Concerned about possible negligence by your healthcare provider?
If you or a member of your family has suffered due to undergoing a treatment or procedure, without being fully informed of the risks, you may have the grounds to bring an informed consent negligence claim. At McCarthy + Co Solicitors LLP, our medical negligence team has extensive experience in bringing successful claims against healthcare providers who failed to obtain proper informed consent. Arrange a free initial consultation with one of our medical negligence solicitors by completing our highly confidential online form.
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