Want to learn about one of the most common types of medical malpractice that almost no one knows about?
People tend to think about surgical errors or wrong-site surgery when discussing medical malpractice. But there’s another type of claim that happens every day…
Informed consent failures.
And they happen far more often — and open the door to legal liability — than you might think.
When doctors or healthcare providers fail to properly inform a patient about the risks and results of a procedure, it takes something extremely important away from that patient:
The ability to make an educated decision about what happens to their own body.
If they end up getting hurt as a result, that failure can open the door to legal recourse. An experienced Orange County medical malpractice lawyer can help injured patients understand whether a failure to obtain informed consent contributed to their injuries.
What you’ll discover::
- What Is Informed Consent?
- What Counts as an Informed Consent Failure?
- How Failures Lead to a Patient Injury Legal Claim
- What Patients Need to Prove
- The Most Common Situations Where This Arises
What Is Informed Consent?
Informed consent is the legal process a medical provider must complete prior to performing any treatment or procedure.
It doesn’t just mean getting a patient to sign their name on the dotted line at your practice’s front desk. Far from it.
Informed consent requires the healthcare provider to:
- Explain to the patient what the treatment/procedure involves
- Lay out ALL known risks and potential complications
- Review ALL available alternatives
- Allow the patient ample opportunity to ask questions
- Confirm the patient understands the information — not just that they provided a signature
One critical step that doctors often fail to do…
Make sure the patient actually understands what they’re being told.
Seriously.
Docs rush through the consent process all the time — or skip steps they feel are inconvenient. What they shouldn’t do is put words on paper that they haven’t thoroughly explained. Otherwise they’re setting themselves and their patients up for legal liability down the road.
What Counts as an Informed Consent Failure?
Just because something goes wrong during treatment doesn’t mean it automatically qualifies as an informed consent failure.
Patients expect procedures to have risks. Unfortunately, doctors and nurses don’t always do their due diligence in explaining those risks.
As a result, these situations serve as the basis for a patient injury legal claim:
- Failure to disclose risks associated with a procedure
- Neglecting to inform the patient of other treatment options
- Failing to obtain consent from the proper person (skipping guardian consent for a minor patient)
- Rushing the patient through the process without verifying understanding
- Obtaining consent after administering a sedative
- Using medical terminology the patient will not understand without providing an explanation
80% of informed consent malpractice cases involved failure to inform the patient about something. Period.
Doctors didn’t throw a scalpel away and accidentally slice their patient. They failed to properly convey the known risks.
Instead of one bad apple, it’s an industry-wide failure to communicate.
How Failures Lead to a Patient Injury Legal Claim
Here’s the kicker for patients to understand…
An inadequate or incomplete consent process does not magically equal a malpractice lawsuit.
First, something must happen to cause actual harm. The two aspects must be linked.
To recover damages for an injury based on a lack of informed consent, three things must be connected:
- The doctor failed to disclose a risk
- That specific risk caused the resulting harm to the patient
- A reasonable person would have declined the treatment had they been properly informed
Courts don’t just look at what this patient would have done with proper information. They apply a standard known as the “reasonable patient.”
Essentially: what would most people have done under the same circumstances?
Say a surgeon failed to tell a patient nerve damage was a possible outcome…
That nerve got damaged during the procedure…
And the patient says they would have canceled the procedure if they’d known that specific risk was possible.
Boom. Patient injury lawsuit.
Now it’s as simple as proving those three elements above. Easy enough, right?
What Patients Need to Prove
Like any other aspect of medical malpractice, proving a failure to inform requires patients to establish some critical elements.
Duty. The healthcare provider had a duty to the patient to obtain proper informed consent.
Breach. The consent that was obtained was incomplete, signed under the wrong circumstances, or didn’t exist at all.
Connection to injury. A direct link exists between what the doctor left out and the injury the patient suffered.
Reasonable person standard. If a reasonable person was provided proper informed consent, they would not have agreed to the treatment.
20% of malpractice cases involve documentation failures of some sort — according to a 2024 report from a Harvard-backed benchmarking group. Failure to properly document informed consent is among the leading documentation errors that leads to malpractice payouts.
It’s bad for patients, but also doctors and healthcare providers.
The Most Common Situations Where This Arises
Failures in informed consent pop up throughout medicine. But some situations are far riskier than others.
Surgeries are by far the most common place you’ll see informed consent errors.
Pressure is high in surgical environments, which means procedures tend to get rushed — including the consent process. When an adverse outcome occurs that the surgeon failed to mention was a possibility, patients are often entitled to compensation.
Similar situations arise in:
- Birth and delivery decisions
- Oncology treatments and chemotherapy
- Cosmetic or elective procedures
- Psychiatric care and mental health treatment
- Clinical trials
Nationally, around 17,000 malpractice lawsuits are filed every year. A significant percentage involve informed consent issues — either alone or combined with other negligent behaviors by medical professionals.
If you’re injured during surgery, there’s a very good chance that part of your claim will involve discussing whether you were adequately informed about known risks and complications.
Why?
70% of malpractice awards paid by doctors are for severe injuries to the patient or death. Informed consent applies in those situations far more often than you might expect.
Final Thoughts
Doctors have an obligation to inform patients about the risks, benefits, and alternative treatment options. When they fail to do so, patients have suffered something very real.
Let’s review:
- Informed consent is the legal process of “educating” patients about what will happen
- Informed consent failures happen often, and form the basis of many lawsuits
- These cases hinge on proving your doctor caused your injuries
- Poor documentation makes a patients’ case substantially stronger
Getting a free consultation with an attorney early helps ensure no important evidence is lost, and statutes of limitations are handled promptly.