Medicine and the Law – Part 4: Informed Consent

Health and Healthcare CategoryIn my previous posts about Medicine and the Law we talked about the elements necessary for a patient-physician relationship — contract and consent as well as medical malpractice. We then went on to discuss causation and the different types. Continuing on in this series let’s talk about informed consent. Failure to obtain informed consent is a leading cause of malpractice claim.

Informed consent essentially is documented written or verbal permission from a patient to receive treatment or undergo a procedure. Typically it involves five elements:

  • A description of the illness
  • A description of the treatment
  • Risks of the treatment
  • Alternatives to the treatment
  • Risks of not having any treatment

AttorneysPhysicians can get into trouble in many scenarios regarding informed consent. Most states require that informed consent be verified by a witnessing party. Thus an informed consent form typically has three signatures — the patient, the doctor, and the witness. If a patient is unable to sign, verbal consent can be obtained or his/her healthcare power of attorney may sign. If there is no family or healthcare power of attorney and the procedure or treatment is emergent then a two-physician consent may be done. This basically is permission granted by the state to care for a patient in an emergent situation according to the standard of care.

When a patient is demented or cannot comprehend any of the requirements for informed consent, then things can get a little dicey. Often times the treating physician will obtain a psychiatric consultation to evaluate the patient’s decision making capacity. If that consultant still cannot determine the patient’s decision making capacity, he may obtain an additional consultation.

As you can imagine, getting permission from a patient who may or may not completely know what is going on is a recipe for disaster. As a treating physician this is an area where you may get in trouble if you are aggressive and treat or if you are conservative and do not treat. Ultimately it is the outcome that gets you in trouble given that most patients who sue are those who have a bad outcome.


Dr. JC is a medical doctor who has a passion for health promotion and education.
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