Did My Doctor Obtain My Informed Consent?
Author(s): Aleks Mladenovic
August 9, 2023
Many people believe that when it comes to decisions about their medical care “the doctor knows best.” We place a great deal of faith in our doctors, entrusting them with the most important, intimate and personal information about ourselves and our families. Society encourages this trust and has (perhaps appropriately) granted doctors and other healthcare providers elevated position and status. This is only natural. After all, doctors are trained to know about the most important things in our lives; our health and the health of our loved ones. It’s no surprise that we readily give doctors access to our medical records, we share with them our medical histories and we confide to them our deepest fears about our health and mortality.
The truth is that the relationship we have with our doctor is one of the most important and deeply personal relationships we will ever have. The relationship is one of trust, but it is not a relationship based on equality of knowledge. In almost all cases, doctors will know much more than we do about our healthcare options, including what medications, treatments or procedures are appropriate or necessary for us. We trust our doctors to be candid, honest and comprehensive when advising us about the risks and benefits of a course of medical management, which could include when not to have treatment at all.
What happens when a doctor breaks a patient’s trust?
Physicians have a professional obligation to properly inform their patients in a way that is meaningful, understandable and reasonable. This information may include the following:
- Advising a patient that he/she needs surgery or medication, or some other treatment for their condition
- Explaining the relative risks and benefits of the treatment or investigation proposed
- Explaining the relative risks and benefits of not undergoing the treatment
- In some cases, the doctor should provide meaningful statistics to inform the patient about the relative risks of treatment versus no treatment (i.e. a specific surgical procedure may carry a 5% risk of a specific adverse outcome/complication, whereas the risk of not going ahead with the surgery may carry a 10% risk of a specific negative health outcome)
- Explaining to the patient whether the proposed treatment or investigation can be postponed or whether it should be done in relatively short order
This is by no means an exhaustive list. The information that a doctor is required to provide to a patient will vary from case to case, but there are certain general principles that apply to the question of a doctor’s obligation to obtain a patient’s informed consent.
What Must a Doctor do to Obtain a Patient’s Informed Consent?
The legal test to prove that a doctor did not obtain a patient’s informed consent for purposes of a lawsuit can be roughly summarized by the following principles:
- The doctor did not provide the patient or his/her substitute decision-maker with the information that the specific patient in this case would have wanted to receive;
- The doctor did not provide the patient or his/her substitute decision-maker with information that any reasonable patient would have wanted to receive; and
- Had the patient been provided with that information, the patient or his/her substitute decision maker would have chosen a different course of medical management (i.e. would not have gone ahead with the proposed surgery or medication regimen).
The doctor will be judged by whether he/she put themselves in the shoes of their patient and provided the kind of information that he/she would expect to receive if they were in the patient’s shoes. In other words, the test for informed consent is a patient-driven test, one that is intended to respect patient autonomy in medical decision-making.
By necessity, the legal test for informed consent is rather ambiguous and fact specific. At trial, the judge or jury will hear testimony from the defendant physician(s) about what they claim to have told the patient. This evidence is almost always at odds with what the patient says he/she was actually told and the judge or jury must then decide who to believe.
As such, the most important evidence in informed consent cases will usually be the evidence of the patient himself/herself or the patient’s family members (provided they are making decisions together). What the doctor wrote in the patient’s chart about these informed consent discussions will also be very important in determining who’s version of events a court will believe.
Since an informed consent lawsuit is primarily about what the patient was or was not told, the role of expert medical witnesses in an informed consent case, while potentially informative, will often not be as important as the testimony given by the patient and the doctor.
This is why having a skilled medical malpractice lawyer is particularly important in an informed consent case.
You will want to hire a lawyer who can help you tell your story and meticulously cross-examine the doctor about his/her version of events where that version differs from what really happened to you.
Signing a Consent Form Does NOT Mean a Patient Gave Informed Consent
Almost invariably, a patient or their substitute decision-maker will be asked to sign a formal Consent Form before undergoing a procedure, investigation, treatment or surgery. These are standard forms that doctors, medical clinics and hospitals have created to document a patient’s consent.
Many people mistakenly believe that if they put their signature to a consent form, they cannot later claim to have been misinformed or uninformed about what they were signing up for — this is not true.
Canadian courts have consistently held that simply getting a patient to sign a consent form does not mean the doctor, clinic, or hospital has demonstrated that they obtained the patient’s informed consent.
It is the actual discussion with the patient that constitutes the informed consent, not a standard consent form. A patient’s signature on a standard consent form is usually not enough for a medical provider to demonstrate that the patient was given the requisite information to make a truly informed decision.
In short, a standard consent form is no substitute for informed consent discussions.
Thomson Rogers’ Medical Malpractice Lawyers Have a Long History of Success in Informed Consent Cases
For decades, Thomson Rogers (also known as TR Law) has been an industry leader in prosecuting informed consent cases in Canada on behalf of patients and their families.
Reibl v. Hugues, one of the leading cases on informed consent was litigated by Thomson Rogers in 1980. In that case, Thomson Rogers’ legendary lawyer, Douglas Goudie prevailed for our client at the Supreme Court of Canada in what still remains one of the leading informed consent decisions in Canadian legal history.
Today, TR Law continues that tradition of excellence and success with its landmark victory in the recent case of Denman v. Radovanovic, an important trial decision that was released in early 2023.
In that case, TR Law Medical Malpractice lawyers, Sloan Mandel, Aleks Mladenovic and Deanna Gilbert were successful in a hotly-contested, complex informed consent trial against three of the most prestigious neurosurgical and neuro-interventional physicians in Canada. At issue was whether these surgeon-scientists obtained the informed consent of Mr. Denman and his wife when they recommended and carried out a series of neuro-vascular embolization procedures, the third of which resulted in a massive brain bleed for Mr. Denman, leaving him permanently disabled and unable to care for himself or his family. The trial judge accepted the arguments made by Thomson Rogers’ lawyers, and found that the defendant physicians had misled Mr. Denman and his wife about the relative risks of the proposed treatments and failed to obtain their informed consent.
The case is important for a number of reasons, one of the primary reasons being the court’s recognition of a patient’s autonomy in medical decision-making, and the need for doctors to be candid, specific and statistically accurate when advising a patient about the details and the relative risks of a proposed course of treatment, particularly when that treatment is statistically riskier than the option of having no treatment at all.
TR Law’s team of medical malpractice lawyers is here to answer any questions you may have about the treatment you received and whether or not your doctor provided you with the necessary information to obtain your informed consent for the medical treatment you or your family has received.
Consultations with our medical malpractice lawyers are always free and come with no obligation.
If you have questions about the medical care you received, we can help you find the answers you deserve.
To schedule a free, no obligation consultation with a TR Law Medical Malpractice lawyer, please directly contact the head of our Medical Malpractice Department, Aleks Mladenovic at 416-868-3204, firstname.lastname@example.org, or Kate Cahill at 416-868-3120, email@example.com.