Lack of Informed Consent

A medical procedure can be a scary process even in the best of circumstances. Doctors are trusted to do their jobs correctly. Many surgical procedures require patients to be under some sort of anesthesia. This means that while the procedure is actually happening, the patient receiving the procedure does not have the ability to respond to questions or to identify to their doctor if they are in pain. Illinois law tries to reduce the risk of medical malpractice and complications with its informed consent law. The purpose of Illinois Informed Consent law is so that a doctor will disclose all information that a patient would find relevant in deciding whether to proceed with a surgical or other medical procedure.

What is Informed Consent?

All patients have a right to fully understand their options before giving their consent to receive non–emergent medical treatments. Before treating a patient, a physician is required to let the patient know all of the benefits and risks associated with the procedure, along with any alternative treatments. Giving the patient this information in plain language helps them to understand the treatment and make a sound decision before giving their consent. Typically, a patient or their representative will sign a form prior to their procedure that details potential risks of the operation.

What standard are Illinois physicians held to?

Physicians in Illinois are held to a “reasonable” standard meaning that Illinois doctors must tell a patient what a reasonable doctor would tell the same patient under the same circumstances. Doctors in Illinois meet their duty of a reasonable doctor if they tell the patient of all foreseeable risks and foreseeable results of a procedure. A physician is not obligated to tell a patient every conceivable, remote risk of an operation, but they must tell the patient of a risk if a reasonable colleague would do so. When an informed consent case comes to trial, other doctors will testify whether or not a particular doctor’s conduct was reasonable under the circumstances. Often, because the local medical community is protective of one another, the doctors who testify in a trial against another doctor will be from another jurisdiction.

What happens if a Doctor does not obtain a patient’s informed consent?

When physician fails to fully inform a patient and the patient suffers personal injury or even death, they may be found liable for medical malpractice. If a doctor performs a procedure they were not authorized to perform, or exceeds the scope of permission given to them by a patient, the patient may have a legal claim for negligence or battery. Lack of informed consent cases differ from other medical malpractice cases because the injured patient only has to show that the doctor’s touching was unwanted, not that it was negligent or that the touching caused any injury.

If you or a loved one has been the victim of injury or death resulting from a lack of consent, contact a Chicago medical malpractice attorney by filling out our contact form online or call us at 877-374-1417 or 312–332–2872 to discuss your case.

Illinois Medical Malpractice Blog - Lack of Informed Consent