Before a physician performs a procedure or treatment, they must explain what they're proposing, what risks it carries, and what alternatives exist. The patient then decides whether to proceed. This process—informed consent—reflects a fundamental principle: patients have the right to make decisions about their own bodies based on adequate information. When physicians fail to provide that information, patients may have malpractice claims even if the procedure itself was performed competently.
What Informed Consent Requires
The doctrine of informed consent requires physicians to disclose certain information before treatment. They must explain the nature of the proposed procedure—what it is and what it involves. They must disclose material risks: adverse outcomes that are either common enough or serious enough that a reasonable patient would want to know about them. They must discuss alternatives, including the option of no treatment. And they must give patients the opportunity to ask questions and consider their options.
The amount of disclosure required depends on the circumstances. A routine blood draw requires less explanation than open-heart surgery. The more significant the intervention and the greater the risks, the more thorough the informed consent process must be.
Two Standards for Measuring Consent
Jurisdictions differ on how they measure whether consent was adequate. Some apply a "professional standard," asking what a reasonable physician would have disclosed under similar circumstances. Under this approach, medical custom defines disclosure obligations—if physicians in the field generally don't disclose a particular risk, failure to disclose it isn't negligent.
Other jurisdictions apply a "patient-centered standard," asking what a reasonable patient would have wanted to know in making the treatment decision. This approach focuses on patient autonomy rather than medical custom. Risks that would matter to patients must be disclosed regardless of whether physicians customarily mention them.
The choice of standard significantly affects case outcomes. The patient-centered approach is generally more favorable to plaintiffs because it doesn't defer to medical profession norms about what to tell patients.
Proving Informed Consent Violations
Informed consent claims require showing that the physician failed to disclose information that should have been disclosed, and that this failure caused harm. The causation element is distinctive: you must prove that if you had received adequate information, you would have made a different decision about treatment.
This "decision causation" is typically judged objectively: would a reasonable patient, fully informed of the undisclosed risk, have declined the procedure? Some courts ask what this particular patient would have done, but even then, self-serving testimony that you would have refused isn't automatically accepted. The question is whether the undisclosed information would have made a real difference to a reasonable decision.
You must also show that the undisclosed risk actually materialized. A physician who fails to mention a risk that never occurs hasn't caused compensable harm through the omission. The harm comes from risks that (a) weren't disclosed, (b) would have affected treatment decisions, and (c) actually happened.
What Consent Forms Do (And Don't) Prove
Patients typically sign consent forms before procedures, and these forms often list potential risks in extensive, sometimes overwhelming detail. Defendants point to signed consent forms as evidence that informed consent was obtained. But a signature doesn't end the inquiry.
Consent forms may be presented for signature without adequate explanation. A patient handed a form in a busy pre-op area, told to "sign here," and given no opportunity to read or discuss its contents hasn't truly been informed. The consent process requires actual communication, not just documentation.
Conversely, consent forms that omit specific risks don't necessarily prove inadequate consent if the physician discussed those risks verbally. The form is evidence, but the real question is what communication actually occurred.
Emergency Exceptions
Informed consent requirements have exceptions for emergencies. When a patient is unconscious or otherwise unable to consent, and delay would cause serious harm, physicians may proceed without consent to provide necessary treatment. The law presumes patients would want life-saving care if they could express a preference.
This exception is limited. It applies to genuine emergencies where obtaining consent is impossible or impractical, not to situations where physicians simply didn't make time for consent discussions. And it doesn't authorize treatment a patient has previously refused—advance directives and known patient wishes must be honored even in emergencies.
Informed Consent vs. Medical Malpractice
Informed consent claims differ from standard malpractice claims. A procedure can be performed with perfect technical skill and still involve an informed consent violation if the physician didn't adequately disclose risks beforehand. Conversely, a physician who obtains proper consent may still commit malpractice through negligent technique.
Some cases involve both: negligent performance of a procedure the patient wouldn't have agreed to with full information. But the claims are analytically distinct. Informed consent protects patient autonomy—the right to make your own medical decisions. Standard malpractice protects against incompetent care. Both rights matter, and both can be enforced through litigation.