Deficient Informed Consent As Medical Malpractice


As you know, medical malpractice is a term referring to when a medical professional has committed negligence.  Primary physicians, surgeons, radiologists, nurses, technicians, dentists, among others will be liable if the care provided to the patient deviated from the standard of care required in the profession.  So long as the professional owed a duty to the plaintiff-patient, breached that duty, and the breach was the proximate cause of the patient’s injury, with a showing that actual damages were suffered.

Experienced medical malpractice attorneys know that malpractice may arise from treatment itself, but also from a medical professional’s failure to receive informed consent to perform the procedure that was performed.

The informed consent requirement mandates medical professionals to disclose to the patient the benefits, risks, and alternative treatments in regard to the procedure being contemplated by the patient.  If a similarly situated patient in the plaintiff’s shoes would not have undergone the procedure had the patient received adequate informed consent, then a medical malpractice action founded in lack of informed consent is appropriate.  However, the lack of informed consent must have been the proximate cause of the plaintiff’s harm.  Moreover, the plaintiff must introduce the testimony of an expert that proves how the defendant did not provide informed consent.

The concept is founded in the right of every person to have absolute control over one’s own body.  This right was what guided the landmark informed consent case, Mohr v. Williams.  In Mohr, the doctor performed surgery on the patient’s left ear instead of the right ear.  Since the doctor only had consent to operate on the right ear, because no emergency existed, and because the doctor must act on behalf of the patient rather than on behalf of himself, the court held him liable for the plaintiff’s damages.

New York so fervently believes in the concept of informed consent, legislators enacted it into law in Public Health Law Section 2805-d.  This statute limits informed consent malpractice actions to those in which the procedure was a non-emergency procedure and only when there has been an actual invasion of the patient’s body.

Experienced medical malpractice attorneys also know that informed consent is not always required.  As the aforementioned statute states, informed consent may be dispensed with if the patient refused to receive informed consent, or if the risks of the procedure are commonly known, when consent is not possible, or when the doctor reasonably believed that full consent of risks would adversely affect the patient.

These defenses are statutorily prescribed and most assuredly will be used by the defense attorney representing the medical professional.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at