Informed Consent – Seven Things You Should Know

By Greg Kohn

As a patient, you have the right to understand the risks and benefits of a course of treatment before deciding whether or not to proceed with a medical treatment. Doctors are required by law to disclose certain information about medical treatments before a patient agrees to proceed with the prescribed treatment. A patient’s consent to treatment after a physician’s disclosure of information related to the prescribed treatment is known as informed consent. If you believe you have been treated without informed consent, consider talking to a medical malpractice attorney.

Seven Facts About Informed Consent

1. Informed consent does not guarantee positive results.
Informed consent is not intended to be a guarantee of a positive outcome in your case. Doctors and medical professionals are required to provide you with sufficient information to decide if you want to continue with the prescribed medical treatment.

2. Informed consent should include both the benefits and the risks of a medical treatment.
When providing information to obtain informed consent, the physician should discuss the potential benefits of the prescribed course of treatment. However, the physician should also discuss the potential risks associated with following the prescribed course of treatment.

3. Your physician should discuss why he is prescribing this particular course of treatment.
During the discussion of the potential risks and benefits of a medical procedure or course of treatment, the physician should also explain why he or she is prescribing this specific course of treatment. In other words, why do the benefits of this treatment outweigh the potential risks?

4. Informed consent should also include information about other potential treatments.
When discussing the prescribed course of treatment, a physician should also discuss other potential treatments. The doctor should inform the patient of the other treatments; the benefits and risks associated with other treatments; and, why these treatments are not as beneficial as the treatment prescribed by the physician.

5. Informed consent also relates to medications.
Doctors should explain the benefits and risks associated with medications being prescribed, including information about alternative medications or treatments. Patients have the right to have all available information before deciding whether to use any medication to treat a medical condition.

6. Disclosure of information for informed consent may not include all information related to risks.
Failing to disclose some information may not rise to the level of malpractice. The standard used to measure whether a physician should have disclosed additional information is:
What would other doctors have disclosed about risks given the same or similar circumstances; or,
Would a typical patient have made a different decision had the patient received the information not disclosed by the doctor?

7. There are exceptions to informed consent.
A doctor is not always required to obtain informed consent before performing certain procedures. For instance, a medical emergency in which taking the time to explain procedures and risks could place a person’s life in jeopardy does not require informed consent. A doctor may not be required to obtain informed consent if the doctor knows that the patient’s emotional state would result in a refusal of a treatment that the person needs or the disclosure of information may make the patient suffer overwhelming anxiety.

Informed Consent Can Be a Tricky Issue

Because medical procedures and course of treatment have no guarantee of success, doctors are often under intense scrutiny. Determining whether informed consent was necessary is difficult in some cases. Likewise, identifying the requirements for informed consent is also difficult in some cases. If you have questions about informed consent, you may want to consult a legal professional. Contact the New Jersey medical malpractice attorneys at Nagel Rice, LLP today to discuss your situation.

About the Author
Greg Kohn is a partner at Nagel Rice and specializes in complex civil litigation cases, including professional malpractice, personal injury, class actions, wrongful death, products liability, and commercial litigation.  He has extensive experience representing clients in both state and federal court. Greg has tried many jury trials to verdict and has recovered over $50 million in settlements and verdicts in all types of personal injury matters including automobile accidents, wrongful death cases, slip and falls, and other catastrophic injury cases. Greg also handles medical malpractice cases, involving misdiagnoses, wrongful birth, and delayed cancer diagnosis. If you have questions regarding this article, you can contact Greg here.