How Informed Consent Impacts a Medical Malpractice Case

Failure to properly advise a patient can play a big role in a doctor's liability when harm occurs.

A doctor must inform a patient about the nature and risks of proposed treatment. The doctor must also obtain the patient’s consent before administering the treatment. This requirement is referred to as “the duty of informed consent.”

Informed consent plays a dominant role in some medical malpractice cases. Imagine a doctor decides that the best way to treat a patient’s digestive problems is with a dangerous procedure involving stomach tissue transplant and grafting. The situation is not an emergency, and some antacids could temporarily resolve the symptoms, but the doctor believes that this procedure is the best way to fix the problem. The doctor instructs the patient that the surgery will happen. The patient asks no questions and prepares for surgery. The doctor performs the surgery brilliantly, but due to no fault of the doctor’s, the patient loses the ability to digest certain foods properly.

The patient would likely have a claim for medical malpractice even though the doctor made no mistakes while performing the surgery. The patient could win a medical malpractice case by proving that the doctor made a mistake prior to the surgery: by failing to obtain informed consent.

In the sections that follow, this article will describe the ways in which doctors might fail to provide informed consent. We’ll also look at a few exceptions to the informed consent rule. (For more of the basics on this legal concept, see What is Informed Consent?)

Informed Consent Requirements

The duty of informed consent essentially creates two requirements: the information requirement and the consent requirement. The information requirement mandates that a doctor provide a patient with sufficient information to determine whether a proposed course of treatment is proper. The consent requirement requires the doctor to obtain the patient’s actual consent. Let’s look at these at a little more depth.

The Information Requirement

How much information must a doctor provide a patient? The answer can vary significantly depending on what state’s laws apply. As a general rule, the doctor must describe the nature of the proposed treatment and the risks of that treatment. However, every conceivable risk need not be disclosed. So, the pertinent question becomes: how do courts determine which risks doctors must disclose? 

To determine the answer, states’ laws generally ask one of two questions:

Would Other Doctors Have Disclosed the Risk? 

A doctor always has a responsibility to act as a reasonable doctor would in a similar situation. So, a good way of determining whether a doctor should have informed a patient of a particular risk is to look to whether other doctors would have done so in similar situations.

This requires expert testimony. The patient (usually under the guidance of a medical malpractice attorney) consults a doctor who offers an opinion as to what risks should have been disclosed in a given situation. The doctor may then be asked to testify in front of a jury, describing why particular risks should have been disclosed. Often, both the plaintiff (the patient) and the defendant (the doctor) hire their own independent experts to testify. In such a case, a jury must determine which expert witness is more credible.

Would Other Patients Have Made Different Decisions If Informed of the Risk? 

The laws of other states put the magnifying glass on the patient instead of the doctor. Rather than asking what a reasonable doctor would have done, these states’ laws wonder whether a reasonable patient would have made a different decision with more information.

This standard makes expert testimony (which can be very expensive) less necessary. A jury can determine what a reasonable patient would have done under the circumstances.

This standard also places greater emphasis on alternative courses of treatment. Reasonable patients may make different decisions depending on what alternatives they are presented with. So, doctors in states following this standard may often present their patients with more alternatives.

The Consent Requirement

A patient might refuse to consent to a procedure even when the doctor has provided complete information about it, and the procedure is clearly in the patient’s best interest. The most common example of this situation occurs when a patient objects to treatment on religious grounds.

In such a case, the doctor may not provide the treatment without the patient’s consent, even if the treatment is in the patient’s best interest.

Exceptions to the Informed Consent Rule


If a patient arrives at a hospital unconscious and in critical condition, a doctor’s job is to save the patient’s life. The doctor is not required to ask for informed consent until a reasonable opportunity arises to do so. At that point, the patient cannot refuse to consent and sue the doctor for treatment already provided. However, the patient can refuse to consent to additional treatment, and the doctor must honor that decision.

Emotionally Fragile Patients 

In some situations, a doctor might reasonably conclude that informing a patient of the risks of a procedure could harm the patient due to increased anxiety. In such a situation, the doctor need not fully disclose the risks of the procedure to the patient.

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