We are all familiar with going into a doctor’s office or a hospital and before the doctor performs any procedure, the doctor requires the patient to sign numerous lengthy consent forms. These consent forms outline the treatments, risks associated with the treatments and other various disclaimers. Typically, the doctor has some sort of discussion with the patient and goes through all relevant information about the procedure and the patient is given the opportunity to ask any questions.

These consent forms, in essence, releases the hospital or doctor’s office from liability if a known risk of the treatment occurs to the patient. However, in order for these consent forms to be valid, the patient must be adequately informed about the procedure, the risk and any viable alternatives.

In a medical malpractice case, based on the doctrine of informed consent, a plaintiff must prove: (1) the physician had a duty to disclose material risks; (2) the physician failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to a treatment that he or she would not have otherwise consented to; and (4) the plaintiff was injured by the treatment. Davis v. Kraff, 405 Ill.App.3d 20 (1st Dist. 2010).

Essentially the whole crux of these arguments is whether something which was not disclosed would have changed a reasonable person’s mind about undergoing the procedure, if it had been disclosed.

For example, in the case of Smith v. Marvin, MD., 377 Ill. App. 3d 562 (3rd Dist. 2007), the patient was set to undergo surgery to remove a non-cancerous mass. The doctor recommended removing the mass and explained to the patient that there were certain risks involved with the surgery including bleeding and infection. However, the doctor did not explain to the patient that by undergoing the surgery she could develop other serious complications nor did the doctor explain to the patient that there were other alternatives to surgery, such as biopsy or observation. After the doctor performed the surgery, the patient developed the undisclosed complication.

The patient argued that the doctor failed to inform her of all of the foreseeable risks of the procedure and of the reasonable alternatives of the procedure. Moreover, she argued that if she would have known of these risks, she would not have undergone the procedure. On the other hand, the doctor argued that the complications were unforeseeable risks of the surgery and further argued that the patient did not prove that she would have refused the procedure.

The Court held that the evidence showed that the doctor did not properly disclose all of the foreseeable risks of the procedure, including the complication suffered by the patient. Further, the Court reasoned that it is up to the jury to decide whether a reasonable person would have decided to undergo a surgery if she had been fully advised of the risks and alternatives.

If you are involved in a case or think that you may have a case, contact Loizzi Law Offices to talk about your specific matter.