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Why Do Hospitals Have You Sign Consent Forms?Posted March 03, 2017
By Jonathan A. Karon
If you’ve ever had surgery or been in the hospital for any sort of diagnostic procedure, you’ve probably been handed a consent form which asks you to acknowledge the risks of the procedure. An old friend was curious about what the legal effect was of signing the form and suggested it would make a good blog post. I agreed, so here goes.
The big question, of course, is does it release the doctor or hospital from liability for medical malpractice? For example if the doctor takes out the wrong kidney or leaves a scalpel inside you, does consenting to the “risks” of surgery get them off the hook? The answer to that question is a resounding “NO”. In Massachusetts, physicians and nurses are required to comply with standard of care of the “average qualified practicioner”. That means that if the average qualified surgeon wouldn’t leave a scalpel in you when they close, then it’s not a recognized risk of surgery. Unless the form specifically says that you are releasing the doctor from all liability for their own negligence, then merely signing the form will not immunize them from a claim that you were injured because they failed to do what they should have. (By the way, I have never heard of a consent form that said it was intended to protect a doctor or hospital from their own negligence. If you are ever presented with one, my unequivocal legal advice is GET YOURSELF TO ANOTHER DOCTOR OR HOSPITAL ASAP).
So what are these consent forms about? They are intended to ensure that there is documentation that you were fully informed of the material risks of a procedure. In addition to being liable for causing a preventable injury by being negligent, the Massachusetts Supreme Judicial Court held in 1982 that doctors also have a duty “to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.” Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 155 (1982). Physicians can be liable for failing to obtain a patient’s informed consent to a procedure if the patient is harmed by a known risk of the procedure that the doctor should have but did not disclose. The doctor is only liable, however, if the plaintiff can show that “had the proper information been provided neither [the plaintiff] nor a reasonable person in similar circumstances would have undergone the procedure.” Harnish, 387 Mass. at 158.
A lack of informed consent claim focuses on whether a reasonable person, who knew of the risks would have undergone the procedure. That a patient might undergo an operation, despite knowing that there is some risk of post-surgical infection, for example, does not mean that the doctor is free from liability for negligently causing such an infection. The doctor would, however, be protected from a claim that they didn’t advise the patient of the risk.
A Massachusetts Appeals Court case from 2005, Roukanis v. Messer, 63 Mass. App. Ct. 482 (2005) helps to explain the difference. The plaintiff alleged that a radiologist mis-read her mammogram films and brought claims that he was both negligent and failed to obtain her informed consent. The Court held that she could not pursue both claims. It explained that she had presented expert testimony that the defendant’s failure to properly read her mammogram was below the standard of care of the average qualified radiologist. Because he mis-read her film, he didn’t diagnose her tumor. He could be held liable for his negligent mis-diagnoses, but not for failing to obtain her consent to treat a condition he wasn’t aware she had. The Court contrasted this with a situation where a doctor is held liable for a high risk treatment rendered non-negligently, but without the informed consent of the patient.
The most important lesson for any of this is, as always, that you should read carefully any document that you’re asked to sign (and not just in hospitals). If you don’t understand what you’re signing or you have any questions, you shouldn’t hesitate to ask for more information. Also, a brief warning. Medical malpractice law varies greatly from state to state. Most states, including Massachusetts, have special statutes and state specific court decisions that affect medical malpractice cases. So, although the above provides some general guidance of the law in Massachusetts, it may well not apply to a potential case in a different state. As always, to get a meaningful evaluation of your situation, you need to consult with an experienced personal injury attorney, not just rely on general guidance from my blog post.
Once again, I’d like to give a shout-out to old friend Bruce Pearson for suggesting this topic and invite you to let me know (use the contact form on the home page) if there’s a legal topic you’d like to see a blog post about.
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