Do Release or Consent Forms Preclude You From Suing for Medical Malpractice?

These days, health care providers require patients to sign lengthy consent forms for all kinds of invasive medical procedures, from MRI to colonoscopy to surgeries. What are consent forms, and how do they affect a potential medical malpractice claim? We'll explain in this article.

What is a Release or Consent Form?

A consent form is a pre-printed legal form with some blank spaces for the health care provider to fill in information that is specific to the medical procedure that will be performed on the patient.

The purpose of the form is to ensure that the patient gives his/her informed consent for the medical procedure before the procedure is performed. The health care provider will describe the medical procedure on the form and will also list a dozen or more potential complications of all levels of severity, up to and perhaps even including the risk of death, even for the most minor of surgeries.

What is Informed Consent?

Informed consent means that the patient specifically consents to the proposed medical procedure. Informed consent is more than just consent. In order for a patient to give informed consent to a medical procedure, the health care provider must inform the patient of all of the risks and complications that may reasonably occur during that procedure, however minor they may be. Only after a patient is truly informed about the potential risks of a medical procedure can a patient give informed consent to the procedure.

For example, the informed consent form for something as simple as arthroscopic knee surgery may list potential complications like postoperative bleeding, persistent swelling, postoperative infection, blood clots, pulmonary embolisms, stretching or tearing of the knee ligaments, torn blood vessels, broken surgical instruments, nerve injuries, and even very rare risks such as reflex sympathetic dystrophy and compartment syndrome.

As long as a complication is statistically significant, health care providers will list that risk on the informed consent form.

How Do These Forms Impact Medical Malpractice Claims?

Release and consent forms can give rise to a medical malpractice claim, and they can prevent medical malpractice claims. To begin with, a poorly written consent form can create a medical malpractice claim if the patient suffers a complication that was either not on the consent form, but should have been, or was not properly described on the consent form.

Failure to Identify a Complication

If a certain complication is a known risk, it should be on the consent form for the medical procedure. But the consent form need not list every single complication that has ever occurred for that procedure.

For example, if, according to the medical literature, a certain type of complication only occurred twice in ten thousand surgeries, the doctor probably doesn't need to list that complication on the consent form. On the other hand, even if a certain complication is rare, but reasonably well known because it has been discussed in the medical literature, then the doctor may well need to list it in the consent form.

If the complication is not on the form, and the patient suffers that complication, then the patient may have a medical malpractice claim against the doctor for performing the procedure without obtaining the patient's informed consent.

Failure to Properly Describe a Complication

This issue can occur when the consent form misstates the odds of a certain complication. If, for example, the complication is known to occur 10% of the time during a given procedure, but the consent form states that it occurs only 1% of the time, then the consent form was wrong.

If that same complication occurred during the surgery, then that may give rise to a claim for lack of informed consent because the patient could say that he/she would not have had that procedure if he/she had known of the actual risk of complication.

A Consent Form Can Bar a Medical Malpractice Claim

Just as the doctor's failure to fill out the consent form properly can give rise to a medical malpractice claim, a properly-executed consent form will generally bar a patient from suing a doctor for lack of informed consent.

As long as:

• the consent form identifies the medical procedure and its reasonably known risks with reasonable adequacy
• the patient was not pressured to sign the form, and
• the patient was mentally competent to sign the form

...then the patient usually cannot make a claim against the doctor for lack of informed consent.

People are generally deemed to have read and understood the forms they have signed. However, if the patient was not competent to sign the form due to dementia, intoxication, or the effects of medication, legal or illegal, then the patient may indeed have a claim for lack of informed consent.

Release Forms Cannot Prevent Claims Arising From Negligent Care

No legal form can bar a patient from bringing a legal claim if negligent treatment did, in deed, lead to harm (although some healthcare providers, like Kaiser Permanente, may force patients into arbitration rather than a lawsuit). If a doctor or hospital made errors that amounted to negligence, it can't hide from a medical malpractice claim behind a legal form.