Legal Issues Surrounding Consent for Treatment

November 18, 2010, 4:05 PM

What is the legal significance of the consent forms your patients routinely sign? Can patients file suit for bad outcomes when they were informed of the risks? What is the role of the physician versus the hospital staff in the consent process? Can a minor ever consent to treatment? This post and the next will address these questions.

There are many legal issues surrounding patient consent for medical care. First, it is important to understand the two theories patients attorneys utilize in consent claims against physicians. The most common claim is based on lack of informed consent. This is a negligence claim; the patient must show that the physician breached the standard of care during the consent process. In other words, did the physician fail to disclose the risks and alternatives a reasonable physician would have disclosed under the same circumstances? In addition, the patient must show that he or she reasonably would not have consented to the treatment with proper disclosure.

The less common consent claim is for battery. Battery requires proof that the physician intentionally provided the treatment without consent or beyond the patients permission. This claim typically does not involve the standard of care, but instead focuses on the factual issue of whether the patient consented to the treatment that was performed. If there was no consent for the treatment, the physician may be held responsible for any complication that occurs, whether or not there was negligence.

Unfortunately, claims for lack of informed consent and battery are on the rise. The best defense is a good understanding of the nature of these claims, awareness of special rules governing unique circumstances, and strong documentation of the consent process, which I will discuss in the next post. --Jason R. Davis