What is Informed Consent?

Informed Consent is traditionally a physician-patient method of exploring various treatment options weighing risk versus reward.

Overtime it became a malpractice shield.  if a risk was disclosed a lawsuit could not be filed.  This shield morphed into a sword as inadequate warnings led to lawsuits related to an imperfect outcome and even lawsuits for battery against a patient.  This multi headed hydra is modern informed consent. It both protects and it bites.

What is the California legal definition of informed consent?

Informed consent in California is the process by which a patient is provided with sufficient information to make a voluntary and educated decision about their medical treatment. This process involves several key components.

First, Capacity and Voluntariness. In Conte versus Girard Orthopaedic Surgeons the court found that the patient must have the capacity to reason and make judgments, and the decision must be made voluntarily and without coercion. The Horowitz office is presently prosecuting a case where the allegation is that informed consent was obtained by fraud. If risks are not properly disclosed this can be malpractice.  If the non-disclosure was intentional and for an improper purpose the matter is not malpractice and has no MICRA protections.  A landmine area for non-disclosure are financial incentives to a physician. The physician must always disclose any personal interests that may affect their judgment, even if the doctor is 100% honest and acting in the patient’s interest.

For example, doctors must tell patients about the Open Payments database. As you probably know, this is a federal online tool that shows any financial ties between doctors and drug or medical device companies.

Physicians are required to make certain "minimal disclosures" to obtain informed consent. These disclosures include:

One, A reasonable explanation of the recommended procedures.

Two, The likelihood of success of each recommended procedure.

Three, The risks involved in accepting and rejecting each proposed procedure, particularly the potential of death or serious harm and complications that might possibly occur.

Disclosure is Still Protective

The case law supports the doctor who has fully and properly disclosed the necessary information. At that point it is the patient’s choice in deciding whether to undergo the recommended treatment. These takes legal responsibility out of the hands of the doctor and leads to the early termination of many medical malpractice lawsuits.

The California Political Disclosure Rules

For political reasons more than practical reasons, California has actual laws requiring doctors to give specific warnings and information to patients about specific conditions.

First up, if you’re facing breast cancer, your doctor has to give you a clear, written summary of your treatment options. This covers the risks, benefits, and alternatives, so you can make the best decision for your health. This is nice. Everyone is against breast cancer and wants to know every single alternative but why just breast cancer? Why not nose cancer and eye cancer and skin cancer? Maybe this one makes some sense in that the decision tree for breast cancer if sloppily given may very well lead a person to make a choice they later regret.

Next, if you need a blood transfusion, you’ll get a guide explaining the procedure, its risks, and other options. This helps you understand exactly what’s involved before you agree to it. Now it is hard to imagine a doctor giving you an elective blood transfusion.

California’s Health and Safety code requires that doctors who do an annual gynecological exam, must provide a standardized summary containing a description of the symptoms and appropriate methods of diagnoses for gynecological cancers. Shouldn’t that be part of the exam? Perhaps the idea is that this forced education is beyond what doctors would normally do so it has a public benefit.
The business and professions code requires physicians to provide written information to patients considering silicone implant surgery.

And not to leave men out doctors when providing a prostate exam during a physical examination must provide patients with a standardized summary about the availability of appropriate diagnostic procedures. This video is not the place to makes the obvious jokes but feel free to add your own in the comments section.

If you are facing a malpractice lawsuit the Horowitz Medical Group can give you a second opinion and provide an overview of your insurance carrier provided defense.  We can review NPDB reporting issues, coverage issues and outside MICRA attacks on your personal assets.

Call Daniel Horowitz at (925) 283-1863