Prior to beginning any course of treatment or performing a medical procedure, physicians must fully inform patients not only about the benefits of the treatment, but also about all of the risks involved. This is known as obtaining a patient's informed consent. If a doctor fails to do so, and the patient is injured, the patient may have grounds to sue for medical malpractice.
Prior to a physician's treating of a patient, the physician is obligated to discuss and disclose several items with the patient; including:
(1) The condition being treated;
(2) The nature and character of the proposed treatment or surgical procedure;
(3) The anticipated results from the proposed treatment or surgical procedure;
(4) The recognized possible alternative forms of treatment; and
(5) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment.
The purpose of the discussion is to provide the patient with as much relevant information as possible in order to allow the patient to make a fully informed decision about how they would like to proceed with treating their health condition.
If a physician begins treatment without making the requisite disclosures, it is likely that a form of negligence has occurred and the patient may have grounds to bring a claim of medical malpractice against the physician.
To prove negligence, a plaintiff must prove the following elements:
Duty: In most cases, an actor must behave as a reasonably prudent person under similar circumstances. The standard of care for physicians differs slightly. Generally, a doctor owes a duty to a patient that is of a similar skill and diligence practiced by other medical professionals in similar fields or specialties. To help prove the depth of the duty owed by the treating physician, the plaintiff will likely want to furnish testimony of other treating physicians in the same field. This testimony will allow a court to evaluate the standard of care that would have been provided to the plaintiff by members of the same field of medicine as the defendant. Further, the testimony will show how the treating physician failed to meet the standard of care established by the experts. When it comes to an informed consent case, the treating physician had a duty to disclose:
Breach of Duty: The plaintiff must then prove that the defendant violated the relevant standard of care. Therefore, when analyzing whether a breach of the standard of care occurred, a Court will compare the act or omission that took place in the case at hand with how a reasonably prudent medical professional in a similar situation would have acted. If it is found that there was a disparity between the performance of the doctor and how other medical professionals of similar skill and diligence would have performed, it is possible medical malpractice occurred.
In the case of an informed consent claim, the plaintiff must prove that the treating physician not only had a duty to inform of the condition being treated; the nature and character of the proposed treatment; possible alternative forms of treatment; and the risks, complications and anticipated benefits involved with both the recommended and alternative options; but also that the treating physician failed to adequately follow through on that duty. The expert testimony should prove that every physician is required to inform of the aforementioned while testimony from the patient will provide insight into how much information the physician disclosed prior to the commencing of the treatment.
Causation: The plaintiff must prove BOTH “cause in fact” and “proximate cause.” Cause in fact requires the plaintiff to connect the defendant's breach of duty to their harm. In most cases, the plaintiff must show that they would not have been injured BUT FOR the defendant's conduct. Proximate cause requires the plaintiff to establish a sufficiently close connection between the breach and the harm. In most cases, the concept of foreseeability drives the determination of proximate cause. For example, in terms of proving causation in an informed consent claim, the patient must show that with the right information, they would not have consented to the treatment plan provided by the physician that ended up causing harm, or that the harm suffered was not disclosed by the physician as a known risk of the treatment.
Damages: The plaintiff must prove that the defendant's breach caused them to suffer actual harm. Without harm, there is not a claim. Therefore, not only must the plaintiff prove that the doctor had a duty to disclose, breached that duty by failing to disclose, and that the breach of duty caused the harm incurred, the plaintiff must also prove that such a harm exists. This is usually the easiest of the elements that need to be proven since a medical opinion can yield the expertise necessary to show the Court that a diagnosis of harm as a result of the treatment is accurate.
If successful, a plaintiff may be entitled to compensatory damages as well as punitive damages. Compensatory damages serve to put the plaintiff back into the monetary position they would have been in had the injury not taken place. Punitive damages are usually an award amount that is in addition to the awarded compensatory damages that serve to punish the defendant so to prevent future similar occurrences from happening.