Lack Of Informed Consent

Lack of informed consent is a recognizable cause of action in Pennsylvania. In short, it means the unauthorized touching of a patient by a doctor or healthcare professional. Without authorization, it is technically considered a battery under the law and damages may be awarded even if no physical harm was done. In addition, a plaintiff may make a claim for monetary damages if a doctor does not properly inform the patient properly of the risks, consequences and alternatives of a procedure.

Lack of informed consent cases can include:

• failure to inform of risks, consequences and alternatives,
• performing additional procedures,
• attempting procedures not trained or credentialed in, and/or
• physician exaggerating experience, or insurance coverage.

The Risks, Consequences & Alternatives

Pennsylvania law on informed consent mandates that every competent adult individual has the legal right to decide what happens to his/her own body. Patients in Pennsylvania have the right to make their our own medical decisions, even if everybody else around them believes they are being unreasonable.

If a doctor tells a patient that they will die if they do not have surgery, that patient is allowed to say ‘no’, under the Pennsylvania informed consent law. The law which protects patient’s right to make their own medical decisions, and also extends to the right of every patient, to be informed of the risks, consequences, and alternatives of any surgery or procedure.

It is only after understanding the risks, the consequences, and alternatives, of a proposed surgery or procedure that a patient can truly make an informed decision. An action or lawsuit for lack of informed consent is actionable, even if the procedure or surgery was performed correctly, and even if the surgery was beneficial.

We believe that patients have the legal and moral right to decide what happens to their own bodies. Physicians should not allowed legally to substitute their decision-making process for that of the patient. If you believe a procedure or surgery was performed whereby you did not understand the risks, consequences, alternatives, or if you believe more surgery was performed than previously agreed upon, we would be happy to review your case for free.

Pennsylvania Jury Instructions on Informed Consent

In every lawsuit for lack of informed consent, Plaintiffs are required to supply to the court proposed jury instructions. The Instructions set forth to the judge what we believe the jury should be told about the law in Pennsylvania as it relates to informed consent. Judge’s then have discretion on what is read to the jury.

The following are jury instructions that we used in a successful jury verdict concerning lack of informed consent.

PA Proposed Jury Instructions (Lack of Informed Consent):

2. You are instructed that a patient must consent to a surgical procedure before the surgical operation is performed. An operation without the patient’s consent constitutes a battery. Montgomery v. Bazaz-Shegal, 568 Pa. 574, 584-86; 798 A.2d 742, 749-50 ( 2002); Foflygen v. R. Zemel, M.D., (P.C.), 420 Pa. Super. 18; 615 A.2d 1345 (1992).
3. “Consent,” within meaning of agreement to operation by doctor, means a voluntary agreement by person in possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. Gray v. Grunnagle, 423 Pa. 144, 157; 223 A.2d 663, 669 (1966).
4. A claim involving a surgical procedure performed without any consent at all by the patient sounds in battery. Montgomery v. Bazaz-Shegal, 568 Pa. at 585; 798 A.2d at 749.
5. A doctor who operates on a patient without that patient’s consent is liable for damages which occur, notwithstanding the care exercised. Gouse v. Cassel, 532 Pa. 197, 204; 615 A.2d 331, 334 (1992).
6. Additionally, the law imposes upon physicians a duty to obtain the informed consent of a patient prior to performing surgery. 40 Pa. C.S.A. § 1303.504; Montgomery v. Bazaz-Shegal, 568 Pa. 574, 584-86; 798 A.2d 742, 749-50 ( 2002); Foflygen v. R. Zemel, M.D., (P.C.), 420 Pa. Super. 18; 615 A.2d 1345 (1992).
7. The information provided by the physician must be sufficient to give the patient a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results. Montgomery, 568 Pa. at 584; 798 A.2d at 748.
8. The duty of informed consent requires a physician to advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Montgomery, 568 Pa. at 584; 798 A.2d at 748.
9. Lack of informed consent is the legal equivalent to no consent; thus, the physician or surgeon who operates without his patient’s informed consent is liable for damages which occur, notwithstanding the care exercised. Gouse v. Cassel, 532 Pa. 197, 204; 615 A.2d 331, 334 (1992).