A Review of the Basis of Medical Responsibility Modern Standard of Care Principles Standard of Care and Requirement...... Conflicting Expert Testimony Consent/Informed Consent Duty to Diagnose Duty to Refer Special Problems in California Is There Really a Medical Malpractice Crisis in America?

A commonly litigated issue in medical malpractice cases is that of consent. Generally, courts and lawyers look at two elements germane this issue, although again, you are cautioned that this discussion is general, and advised to consult with a professional in your state as to that state's requirements.

First, did the patient actually consent to undergo a particular procedure; and secondly, was the patient sufficiently apprised of the reasons for the procedure, the risks inherent therein, the nature of the procedure, such as to enable him/her to give an informed consent to the procedure itself.

For example, in many states, if a doctor operates on a patient without the patient's consent, that doctor may be liable for a battery. A writing may or may not be required, depending upon the laws of the particular state at issue.

In many states, consent may be given orally, or even implied by ones conscious submission to a procedure. [Consent may also be implied under circumstances of emergency, or where the patient is unconscious, a minor, or incapable of consenting to treatment.]

Generally, a physician may not extend the scope of an operation without the consent of the patient. Likewise, the traditional rule is that a physician is not permitted to perform an operation in the first place without proper authorization. However, the law is far from universal in each state, and there are numerous exceptions to this rule. This is especially so, in emergency and life endangering conditions.

Moreover, in certain jurisdictions where the consent is framed in terms of achievement of a specific result, as opposed to defining a particularized procedure itself, the physician may be authorized to do what is reasonably necessary and appropriate to the achievement of that result.

Even where the patient may have "consented" to the procedure, however, that consent must necessarily be "informed" This means that not only the patient must have been made aware of the need for the medical treatment, but that the patient was also advised of all risks inherent in the undertaking. The major justification for the informed consent doctrine is the patient's right of self-determination, that is, that the patient has the paramount interest and freedom in deciding what shall be done with his person.

Consent/informed consent cases are often times difficult cases to prove. It is not uncommon for the patient to recall being told one thing, while the physician has a different recollection altogether. Where the medical records do not chart or document fully that consent was obtained, it becomes a credibility battle for the jury to decide.

Additionally, the plaintiff still must prove a causative link between the failure to provide informed consent, and the untoward result. In other words, the plaintiff must establish that s/he would not have undergone the procedure which caused him/her the harm had s/he known all of the risks involved. If other satisfactory procedures with less risks did not exist, this burden often times becomes insurmountable for the damaged plaintiff.