Were You Adequately Warned About The Risks Of An Operation? Find Out Why “Informed Consent” Cases Are Difficult To Win.

Medical Malpractice Mistakes

What is an “informed consent” case? An informed consent is based on the claim that the patient was not adequately warned about the risks of a certain operation or medication and if the patient had been fully informed about the risks of the operation or medication, he would not have undergone the treatment.

A classic example of an informed consent claim is based upon an operation on a patient’s back. For example, it is not uncommon that patients undergoing an operation on their back will have new complaints or symptoms after the operation. Some patients have numbness and lack of sensation in their leg after an operation on their lower back, and they suspect that the surgeon was negligent by causing new symptoms that they did not have before the operation.

My conversation with this new client goes something like this. Lawyer: “Did you sign an informed consent before the operation?” New Client: “I signed some document minutes before I went under the knife, but I didn’t read it.” Lawyer: “Have you read the document since the operation?” Client: “No.” Lawyer: “Do you have any idea what you signed?” Client: “No clue.”

Don’t feel bad–very few people actually read the informed consent document before the operation since they have bigger things on their mind. But here’s the problem: If the patient has no clue about the informed consent document that he signed before the operation, how can he know whether the risks of the operation were adequately explained? He can’t.

The classic informed consent case often comes down to the testimony of the physician against the patient in the context in which the physician has many advantages in front of a jury. The large majority of jurors come to the trial with preconceived God-like notions of doctors, while they are conditioned by the media to believe that personal injury plaintiffs are greedy, blood-sucking leeches. The patient has two strikes against him in the classic “he said, she said” battle between the physician and the patient.

Once a patient admits that some communication was made by the physician concerning the risks of the operation, the physician can blame the patient for failing to ask for more information or to reveal his confusion. The physician will testify that he had numerous conversations with the patient in his office and at the hospital where he thoroughly explained all of the risks and complications of the operation, and the patien did not ask a single question. This is part of the “let’s blame the patient” excuse that doctors use in informed consent cases.

The physician can also contradict the patient’s memory of the conversation. If the patient claims that he was not warned about certain risks by the physician, the physician will challenge the physician’s testimony and present a team of nurses to corroborate the physician’s claim.

Physicians are often very polished in their courtroom testimony, often due to their experience, and ther poise and confidence in a courtroom cannot be matched by patients with zero experience in a courtroom. Hence, in the credibility battle, juries almost always side with the physician over the patient.

Finally, as if this weren’t enough, the informed consent document signed by the patient almost always has boilerplate language stating that: “It is impossible to convey all of the risks and complications of this operation.” As a last resort, physicians will rely on this all-encompassing language to defend the informed consent claim. Many courts and juries accept this defense–it is simply too difficult to warn of every conceivable risk of an operation or medication.

The bottom line for patients: If your case is based solely on the lack of an adequate warning about the risks of an operation or medication, you will have an uphill battle and need an experienced attorney.