Another kind of case closely related to the surgical case is the informed consent case; but these cases have a special variant with unique problems associated with them. Let’s start with the premise that every person has the right to control what happens with his or her own body. In the context of a surgery, this means that the patient has the right to consent to have the surgery or not. This also means that a surgeon has an obligation to explain the risks, benefits, and alternatives of the surgery to the patient and then the patient can consent. It is important that the patient giving consent is giving “knowing consent”; and a knowing consent requires that somebody has spent time with the patient to provide a thorough explanation of the procedure and its effects.
Any of us who have had surgeries know that often the explanation we get and the consent that we give entails signing a form on a clip board immediately before the surgery. As a malpractice lawyer I have made note personally of this when going in for surgery. This can have serious consequences when a risk of a procedure materializes and the plaintiff patient claims:“had I known this could have happened to me, I would have never consented to this procedure”. Informed consent cases are a little bit more complicated than they may seem at first blush because the plaintiff patient can not claim: “They didn’t tell me, and had they told me I wouldn’t have done it.” Also, the physician can not simply claim that he did or did not inform that patient properly with nothing to back up that claim. These cases will require a factual and intensive investigation, and the jury will see and hear evidence regarding the case.
If the only evidence that the doctor can provide regarding consent is the signed consent form containing a few check boxes and the patients name, that won’t go very far in supporting the physician’s position that he gave an informed consent to the plaintiff. Likewise, if there is just a vague note on the chart and nothing further, there will be the same problem for the physician. However, the physician is likely to testify, and will claim that he told the patient all of the possibilities of the procedure and the patient consented anyway. At that point, we turn to the plaintiff who will state that he was not given this information.
It is important to note that the question of differentiating between what the doctor says and what the plaintiff says is going to be resolved by the jury, but there is another complicating factor. There is something called The Objective and Subjective Standard. Subjective is the plaintiff’s feelings and statements about the matter. The plaintiff may say: “if the doctor told me that, I wouldn’t have gone through with surgery.” Is that it? Is the case closed? Will the jury say that the case is closed because they have heard what the plaintiff has to say? The Plaintiff wins? Unfortunately not, and the reason is because New York uses The Objective Standard, which means that what the ordinary, reasonable patient would have done under the same or similar circumstances. Let’s examine what that might mean…
If a patient has been undergoing chronic, serious pain, and repeatedly seeing the doctor, and every time the doctor evaluates the pain it is a 9 or 10 out of 10, then the jury will hear an argument that the patient was willing to do just about anything to get rid of this pain. The plaintiff may deny that they would have gone through with the treatment, or was told there was only a 1% chance of a poor outcome. The plaintiff may claim that they were willing to live with this horrible pain. The jury can apply the Objective Standard and say: “You were living with unbearable pain, and we appreciate that a bad thing has happened to you, but we believe that you would have consented”; and in that case, the defendant would win.
There is no question about the fact that a plaintiff is entitled to informed and knowing consent, but, again, like everything in Malpractice the case is very situation-specific and fact-based. If there is a case where you think you were not told risks that you should have been told before surgery, I hope that you will call us. We will do everything we can, knowing the law as we do to assist you with that claim.