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How Lack of “Informed Consent” Is Medical Malpractice in New York

Just about every medical treatment involves some amount of risk. For example, a popular drug may have certain well-known potential side effects. And any time a person requires surgery, there is the risk of complications that may lead to further injury or even death. So it is generally impossible for any health care provider to assert that a procedure or treatment is 100-percent safe.

For this reason, medical professionals in New York have an obligation to obtain “informed consent” from their patients before undertaking a particular course of treatment. This goes beyond merely getting the patient to sign a form agreeing to a procedure. The health care provider must explain the procedure–and its known potential risks–so that the patient can determine for themselves if the potential benefits outweigh those risks. Failure to obtain informed consent is a form of medical malpractice under New York law.

How Do You Prove Lack of Informed Consent?

At the same time, medical malpractice claims based on lack of informed consent require the patient to clear a number of legal hurdles. New York Public Health Law § 2805-D spells out the limitations of such claims. Some of the key provisions of this section include:

  • A lack of informed consent means a health care professional fails to “disclose to the patient” any “reasonably foreseeable risks” of a treatment, which in turn is based on what a “reasonable” practitioner would disclose under similar circumstances.
  • A patient may file a medical malpractice claim for lack of informed consent only in cases involving non-emergency treatment or a diagnostic procedure that requires the “invasion or disruption of the integrity of the body.”
  • The patient must prove that a “reasonably prudent person” in their position would have refused the treatment had they been “fully informed.”
  • The patient’s “lack of informed consent” was a proximate (direct) cause of the injury for which they now seek compensation.

Even meeting all of these conditions, a health care professional can still assert a number of defenses to a lack of informed consent claim in medical malpractice cases. Some of these defense include:

  • The risk cited by the patient was “too commonly known to warrant” specific disclosure.
  • The patient told the provider that they would consent to the treatment “regardless of the risk involved.”
  • The patient insisted they did not want to be informed of all of the risks before consenting to the treatment.
  • It was not possible for the provider to obtain consent from the patient or someone acting authorized on the patient’s behalf (e.g., an emergency situation where the patient was unconscious).
  • Based on all of the relevant facts and circumstances, the provider believed that disclosing certain risks or alternatives to the patient “could reasonably be expected to adversely and substantially affect the patient’s condition.”

Judge Allows 74-Year-Old Woman to Argue Doctor Performed Unnecessary Cyst Removal

In practice, proving a New York medical malpractice case based on lack of informed consent requires the assistance of expert testimony, which is necessary in just about every medical malpractice lawsuit. The expert’s role is to help establish how the defendant health care provider deviated from the accepted standard of care for someone in their profession and specialty. With respect to informed consent, that often includes explaining how the treatment proposed by the provider was risky or medically unnecessary compared to alternatives.

To give a practical example, here is a recent decision from an actual New York medical malpractice lawsuit based on lack of informed consent. In Fisch v. Hadjipanayis, the 74-year-old plaintiff sought medical treatment following a slip and fall accident where her head struck the ground. The plaintiff went to the emergency room at a nearby hospital. A CT scan determined the plaintiff had a pre-existing subarachnoid bleed as well as the “presence of a colloid cyst,” i.e., a non-malignant brain tumor. Both of these had been present in the plaintiff for approximately nine years, but they were asymptomatic.

The hospital discharged the plaintiff and referred her for follow-up treatment. A few days later, the plaintiff saw the defendant physician. He advised the plaintiff to undergo a surgical procedure to remove the cyst. According to the plaintiff, the defendant incorrectly advised her that the cyst had been growing and causing her to suffer memory and sleep problems. The defendant also believed that not removing the cyst immediately would run the risk of killing the plaintiff.

The plaintiff consented to the removal surgery. But the procedure led to further problems, including an additional loss of memory, incontinence, and the inability to walk. She subsequently sued the defendant for medical malpractice based on lack of informed consent. Specifically, the plaintiff maintained the removal of the cyst was not medically necessary and that she never would have given consent had she been fully informed of the potential risks.

Both sides submitted affidavits from expert witnesses supporting their respective position. The defense moved for summary judgment, arguing that its expert testimony required a finding that the doctor acted within the accepted standard of care. The judge denied the motion, however, holding the conflicting expert of testimony created a disputed issue of fact for a jury to decide. The judge noted the plaintiff’s expert testified that the surgical procedure “was not indicated and should not have been performed” and that the “risks to older patients such as [the plaintiff] outweigh the benefits of surgery.” As such, the plaintiff presented a viable claim for lack of informed consent.

Contact Our Syracuse Medical Malpractice Attorneys Today

Medical malpractice cases are inherently complicated. It is not enough to simply tell the court you regret consenting to a medical procedure and now you want to hold the doctor responsible for performing a risky procedure. You still need to prove the elements of a lack of informed consent claim. An experienced Syracuse medical malpractice lawyer can assist you in building and presenting your case to a judge or jury. If you have been the victim of professional medical negligence, contact Powers & Santola, LLP today to schedule an initial consultation.

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