Issues With Informed Consent: New York Medical Malpractice Attorney Discusses

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Patients are the ones who determine what happens to their body.  Within medicine this concept is known as informed consent.  A patient must have given their informed consent prior to a procedure being performed on him or her.  It has very few exceptions, such as emergencies.

In New York, informed consent in medicine is governed by Public Health Law § 2805-d.  Under this statute, lack of informed consent is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonable foreseeable risks and benefits involved as a reasonable, medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”

To prove a lack of informed consent, it must be shown that “a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that lack of informed consent is a proximate cause of the injury . . . .”

The treating physician is the individual who has the legal requirement to obtain informed consent.  This duty may be delegated to another health professional, however if something goes wrong and the person the duty was delegated to failed to inform the patient sufficiently of the risks, benefits, and alternatives, then the physician is still responsible.

In emergency situations, where immediate treatment is necessary to prevent death or serious harm, then the doctors is permitted to act in his or her best judgment if delaying treatment in order to obtain the patient’s consent could cause additional injury.  Additionally, if the patient is a minor and health care professionals are not able to contact a family member in a timely manner, there is also an exception.

Patients rely on their doctors to provide them with the best treatment when they are sick.  However, this does not mean that a doctor can automatically determine what is best for their patient’s without first discussing the options.  Even when a doctor acts in good faith, he or she could still be liable for battery if they failed to obtain informed consent from their patient.

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