ABA Family Legal Guide

Health-Care Law

Patients' Rights

Informed Consent

What exactly does the doctor have to tell me?

In most cases on informed consent, the patient consented to the treatment, but argues that he or she did not have enough information about the treatment to make the consent effective.

There are several pieces of information a patient needs to make a choice about treatment:

• A description of the proposed treatment or procedure in terms the patient can understand. Even the brightest among us can get lost when wading through medical jargon.
• The benefits, risks, and side effects of the treatment.
• The risks of not treating the ailment.
• Any alternative treatments that are available, along with the risks of those alternative treatments.
• The rate of success for the treatment, as well as how success is defined.
• Information on whether the procedure is experimental.
• A description of the recuperation period, including a time frame and possible complications.
• Conflicts of interest. Patients need to know if the doctor has something to gain financially by referring the patient to a particular facility or by recommending a specific treatment.

This does not mean that the doctor has to tell you of every conceivable ache, pain, or minor side effect that may occur. It does mean that the doctor has to tell you about any facts that might cause a reasonable person to decide not to agree to the treatment. For example, a reasonable person might decide not to have surgery after she finds out it carries a 50 percent risk of paralysis. The doctor needs to tell her of this risk in order for her consent to be "informed."

In most states, a jury will consider four questions to determine whether a patient's consent was informed:

1. Did the patient understand enough of the information to give an effective consent?

2. Was the patient given the same information as other patients in the same situation?

3. If the patient had been given sufficient information, would he or she have consented to the treatment?

4. Was the patient warned about the complication that later arose?

The patient cannot bring a lawsuit if the patient was not injured, even if the patient did not give an informed consent. However, the patient still is entitled to file a complaint with the state licensing agency against the doctor for professional misconduct, regardless of whether an injury resulted. The doctor may then face some form of discipline from that agency.