The doctrine of informed consent was created by the NEW York Court of Appeals and codified by statute in 1975 in NY Public Health Law 2805-d. It requires that a doctor inform a patient of the reasonably foreseeable risks, benefits, and alternatives of a particular treatment. It is predicated upon the very simple precept that every individual has the right to determine what can or cannot be done to his or her body. Whether there is negligence during treatment is irrelevant. It must simply be proved that the unconsented to procedure caused injury.
A patient can prevail in a claim for lack of informed consent where the physician failed to disclose the reasonably foreseeable risks and alternatives to treatment AND that a reasonably prudent patient would not have undergone that procedure. The issue is not whether that particular patient would not have undergone the procedure in retrospect, but whether an ordinary prudent patient would not have done so.
The consent is often an actual document form that usually describes the risks and/or provides that such risks have been verbally disclosed to the patient. Consent is implied with emergency treatment.
Our firm represented a client who consented to one operation, but the surgeon performed an additional second procedure completely unbeknownst to the patient. That second procedure caused the patient permanent nerve damage. Although there was no malpractice in the actual performance of that procedure, our client was successful on her claim for lack of informed consent, as well as lack of consent. In that case, the consent form did not state the second procedure. In that case, the surgeon as well as the prescribing physician were sued, since referring physicians who recommend a particular procedure must also obtain informed consent, even if they don't perform the actual procedure.
Our firm also represented another client who was informed of the risk of death, but not of other more specific risks associated with the procedure. The defense lawyer argued to the jury that because the patient was informed of the risk of death there can be no harm in not informing her of the other risks since she agreed to the procedure knowing the most severe risks. This argument was without merit as a patient must obtain informed consent as to all reasonably foreseeable risks, not only be informed of the risk of death.
Lack of informed consent is a separate and independent cause of action and must be pleaded separately.
Weisfuse & Weisfuse, LLP represents victims of medical malpractice and has brought claims based on lack of informed consent. Contact us at (212) 983-3000 for a free consultation.