Informed Consent – What Should Your Doctors Tell You Prior to Treatment?

Medical malpractice cases are not limited to those involving a doctor deviating from the standard of care in his treatment of a patient and as a result causing significant injuries or even death to the patient. Medical malpractice may occur when a doctor fails to obtain “informed consent” from the patient prior to rendering treatment.

The Maryland Court of Appeals reported the seminal Maryland case with respect to informed consent – Sard v. Hardy, 281 Md. 432 (1977). In that case, the Court explained that the doctrine of informed consent “follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.” The origin for the informed consent doctrine is “the patient’s right to exercise control over his own body, at least when undergoing elective surgery, by deciding for himself whether or not to submit to the particular therapy.” That said, the doctrine of informed consent recognizes that patients are generally untrained in medical science, unlike doctors, and therefore depend completely on the trust and skill of their physicians to help them make their decision. Broadly stated, a physician has the duty to explain the medical procedure to the patient and warn the patient of any material risks or dangers with respect to the procedure, prior to subjecting the patient to the medical procedure, so that the patient is able to make an intelligent choice about whether or not to undergo such treatment.

So what information must a physician disclose to a patient? The measurement is the materiality of the information to the decision of the patient. A material risk is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure. The physician is not required to divulge all risks, just those which are material to the intelligent decision of a reasonably prudent patient. Essentially, the law does not allow a physician to substitute his judgment for that of the patient in the matter of consent to treatment. An objective test applies to the link between the failure to inform a patient of a risk and the injury. More specifically, the test is whether a reasonable person in the patient’s position would have withheld consent to the surgery or therapy had all material risks been disclosed to them.

As an example, in the Sard case, a mother was concerned about becoming pregnant for the fourth time due to previously complicated pregnancies, concern for her future health, and the inability to afford another child. Her doctor offered to perform a sterilization procedure at the time of her cesarean section for her third pregnancy. However, the doctor failed to inform the patient that there are six types of procedures that he could perform, all with varying levels of failure rates. Her doctor failed to inform her that there even were failure rates. Moreover, the doctor did not inform the patient that these procedures are significantly more effective if performed at a time subsequent to the cesarean section, essentially denying her the opportunity of deciding to have the procedure at a later time when the risk of failure would have been drastically reduced. As a result, the patient proceeded with the sterilization procedure at the time of her cesarean section, believing that the procedure would have 100% success. However, the procedure was not effective and she subsequently became pregnant for the fourth time. The Court held that a jury could reasonably have concluded that this information would have been of material significance to a woman desirous of permanently preventing childbirth in the most effective manner.