Can Lack of Patient Consent Mean Medical Malpractice?

When a patient's injury relates to a lack of "informed consent," a doctor or hospital might be liable for medical malpractice.

Updated by , J.D. · University of San Francisco School of Law

A doctor or other health care professional must have a patient's consent—express or implied—before providing treatment, and many procedures require the patient's "informed" consent. When failure to obtain proper consent is linked to patient injury, there could be a viable medical malpractice case.

"Express" and "Informed" Patient Consent

Express consent is just what it sounds like; the patient consents, usually in writing, to a specific medical procedure or treatment.

Express written consent is required for almost every non-emergency procedure imaginable. If you have ever had surgery or undergone an MRI, you may recall a one or two page form that described the procedure, set forth a list of perhaps a dozen potential complications, and possibly even listed additional care that might be necessary in the event of those complications.

But consent requires more than the patient merely agreeing to the procedure; the patient must give informed consent. That usually means the patient must be provided with all essential information related to the procedure—including risks and complications that may occur during the procedure—and be given the opportunity to discuss any concerns.

That's why, if you've had surgery or an MRI (or some other procedure, as discussed above), at some point someone (perhaps a doctor) likely came by to discuss the form and answer any questions you might have had. Whatever the specifics, the procedure would not have been carried out unless you signed the form.

When Can Claims Arise Over Lack of Express Consent?

Medical malpractice claims for lack of express consent can arise when a doctor performs surgery on the wrong body part, or decides to perform a second, non-emergency, surgical procedure. Express consent issues can also arise when:

  • the consent form failed to identify the particular complication that the patient ended up experiencing
  • the complication that occurred was actually much more common than the consent form suggested, and
  • the doctor's explanations of the potential complications differed from what was stated on the consent form.

Let's take a closer look at some potential problems related to the consent form.

Failure to Identify a Complication

The consent form need not list every single complication that has ever been linked to the procedure. If a certain serious complication is rare, but reasonably well known because it has been discussed in the medical literature, an argument can certainly be made that it should have been listed in the consent form, and that failure to list it amounted to medical negligence.

Failure to Properly Describe a Complication

This can occur when the consent form misstates the chances or odds of a certain complication—i.e. the complication is known to occur 10 percent of the time during a given procedure, but the consent form states that it occurs only 1 percent of the time. If that same complication occurs during the procedure, the patient could argue that they would not have undergone the procedure had they known of the actual risk.

Issues can also arise with a consent form if there is evidence that the patient was pressured to sign, or if the patient signed at a time when their mental competence might be at issue—due to dementia, intoxication, or the effects of medication.

When Is a Patient's Consent "Implied"?

When something is implied, that means it can be inferred from the circumstances. Patients usually give implied consent to non-surgical forms of medical treatment by simply showing up and receiving care.

If your doctor recommends that you get a flu shot, and without signing anything or actually saying to the doctor, "I consent to getting the flu shot," you are deemed to have given implied consent to the injection by simply showing up and rolling up your sleeve.

Implied consent can also arise in emergency treatment situations, especially when the patient is unconscious. When immediate care is critical, the doctrine of implied consent usually allows treatment to be provided if the patient can't give express consent.

Is a Consent Violation Grounds for a Medical Malpractice Lawsuit?

Not on its own. In order to be successful in a medical malpractice claim, the patient has to prove that a health care professional was negligent, and that the negligence (the consent violation, in the context of this article) resulted in some measure of harm ("damages"). That can mean a variety of things, including:

  • the occurrence of a separate injury—or the exacerbation of an existing health problem—that would not have occurred if consent was properly obtained, and/or
  • the infliction of distinct pain and suffering—or the compounding of the patient's existing discomfort—because of the failure to obtain proper consent from the patient.

If no actual harm resulted from the consent violation, there is usually nothing to sue for. Consent violations may be a crime in certain situations, but whether criminal charges will ultimately be brought is usually up to government officials like district attorneys, not patients.

Questions of consent can be tricky in the context of a potential medical malpractice lawsuit. For information that's tailored to your situation, it might make sense to talk with a legal professional. You can connect with a medical malpractice lawyer in your area by using the chat feature and other tools right on this page, or learn more about finding the right medical malpractice lawyer.

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