Written by: Jesse Minc Portrait Jesse Minc

Informed Consent Claims in New York Medical Malpractice Cases: The Basics of a Claim

The relationship between physician and patient is a partnership when it is functioning properly.  This is a partnership in which trust is a foundational and indispensable component.  When a patient seeks medical care and treatment from a doctor, the patient is entitled to trust that the doctor is providing full disclosure, informing the patient of all of the pertinent risks and benefits to a particular course of treatment, as well as alternative courses of treatment – which may include no treatment at all – for a particular medical condition.  This way, the patient can make an informed decision along with his or her doctor, and give informed consent to a course of medical treatment that may have both positive and negative effects upon the health of the patient. However, in all too many circumstances, a doctor or other medical provider does not provide the full disclosure to which the patient is entitled, and the patient agrees to undergo a course of medical care and treatment that the patient might not have opted for had full disclosure been provided.

When physicians breach the trust of their patient, fail to provide full disclosure to a patient, and harm the patient as a result, a species of medical malpractice claim known as “lack of informed consent” may accrue to the patient and entitle the patient to substantial compensation in a medical malpractice lawsuit.  These claims are often brought in tandem with medical malpractice claims involving a breach of the standard of care applicable to a particular course of medical treatment.  In this article, we explain the basic legal elements of a claim for “lack of informed consent” under New York medical malpractice law, and hope to educate readers about their legal rights if a doctor does not fully disclose all of the information regarding a particular course of medical treatment that he or she is obligated to discuss with a patient before undertaking to render care and treatment that may be harmful or undesirable.

Under New York medical malpractice law, as developed by the courts, a cause of action for “lack of informed consent” requires a plaintiff (the legal term for the injured patient under New York medical malpractice law) to prove that (i) the physician or other medical provider failed to fully disclose alternative courses of treatment and reasonably foreseeable risks associated with the treatment rendered, as well as risks associated with all alternative courses of treatment, that a reasonable physician or other medical provider would have disclosed under the same circumstances, (ii) that a reasonably prudent patient in the same position would not have undergone the treatment which was actually provided by the physician or other medical provider had the patient been fully informed of the risks and alternatives, and (iii) that the failure of the physician or other medical provider was a proximate cause of an injury.  A medical malpractice plaintiff must prove all three of these elements in order to sustain a cause of action for “lack of informed consent” and collect compensation.

By way of example, imagine a case in which a woman approaches a plastic surgeon and complains about stretch marks on her abdomen which appeared after a pregnancy.  The doctor tells the patient that the only treatment option to remove the stretch marks is to undergo a surgical procedure known as an Abdominoplasty, which involves making a large incision along the lower abdomen between the hip bones to remove excess skin and fat from the abdomen.  The doctor does not inform the patient that other less-invasive treatments such as laser treatment or application of prescription creams can also treat the stretch marks.  The doctor further fails to inform the patient that there is a risk that the incision may have to extend beyond her lower abdomen past her hips and onto her back in order to successfully treat the stretch marks, or that the scarring may be uneven when comparing one side of the body to the other after surgery.  During the procedure, the doctor extends the incision around to the woman’s back, leaving her with large and uneven scars all around her waist from her lower abdomen all the way around to her spine.  In this case, the patient might be able to bring a medical malpractice lawsuit alleging a “lack of informed consent”, as the physician failed to inform her that she could treat the stretch marks by other means, and failed to inform her that the incision might extend beyond her hip bones and leave her with uneven scarring across her back.  In such a case, the injury claimed would be the scars to the extent they extended beyond her hip bones across her back, causing her significant disfigurement and embarrassment.  In this type of case, the “informed consent” claim would be brought alongside a claim for departures from the standard of care in performing a surgery in an improper manner and with substandard techniques not in keeping with standards of care applicable to these types of surgeries.

If you believe that you or a loved one have been the victim of medical malpractice, please contact us today at (718) 354-8000.  We will listen to your story, analyze your claims and teach you about your rights to compensation under New York law.


Category: Medical Malpractice