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What is Informed Consent?

Prior to a patient undergoing surgery, certain medical tests, medical treatment or medical procedures in Kentucky, the doctor, nurse, hospital or other medical facility must provide the patient with clear information about the surgery, test, treatment or procedure, the risks associated with the surgery, test, treatment or procedure and alternative treatment options available. This practice is called "informed consent". Informed consent is based upon the patient's right to make educated choices regarding their health and well-being. The doctor, nurse, hospital or other medical provider is to explain the surgery, test, treatment or procedure as well as the risks involved. The patient is to be given an opportunity to ask questions and to have their medical questions answered.

Nearly every state has a medical consent law that requires doctors to inform patients of medical treatment, the likely outcome, the risks and alternative treatments or medical options. The majority of doctors, nurses and other medical providers first discuss the treatment plan with their patients, document the discussion in the patients chart or medical records and then require that their patients read and sign a written consent form.

A medical informed consent form typically includes:

  • The name of the doctor performing the surgery, test, treatment or procedure
  • An explanation and description of the surgery, test, medical treatment or procedure
  • The purpose of the surgery, test, medical treatment or procedure
  • The risks of performing/not performing the surgery, test, medical treatment or procedure (or at least a statement confirming that risks have been discussed and are understood by the patient)
  • The medical options (or at least a statement that the options have been discussed and are understood by the patient)
  • Confirmation that the patient has read and has understood the contents of the consent form
  • Signatures of the patient, the doctor, the nurse or other medical provider that reviewed the consent form with the patient and a witness

A medical informed consent form often also includes:

  • The success rate of the proposed surgery, test, treatment or procedure
  • The projected recovery time
  • Costs and insurance coverage for the surgery, test, treatment or procedure

The nature of medicine makes it such that not all risks of every surgery, test, treatment or procedure can reasonably be disclosed. However, certain known complications and risks must be disclosed. Common examples include the risk of infection, an adverse reaction to a dye or anesthesia or medication that is to be used, etc. While disclosure of risks can be somewhat subjective, generally the most common risks and the most serious/dangerous risks are to be presented by the doctor to the patient. There are exceptions to full disclosure. Doctors are not required to disclose medical risks when there is an emergency situation and time is critical. In these cases, the doctor should make the decision that is in the patient's best interest. Also, in cases where the patient is deemed "incompetent" to make a reasoned decision, the doctor should obtain informed consent from a caretaker. If a caretaker is not available, then again, the doctor should make the decision that is in the best interest of the patient.

When lack of informed consent occurs and a patient sustains injury or harm as the result of the surgery, test, medical treatment or procedure, then the doctor, nurse, facility or medical provider may be found negligent.

Lack of informed consent can occur when:

  • A doctor or other medical provider performs surgery , a test, treatment or a medical procedure without the patient's consent
  • A doctor or other medical provider performs a medical procedure other than that which was consented to by the patient
  • A doctor or other medical provider performs additional procedure(s) that was/were medically unnecessary
  • A different doctor/medical professional performs the surgery, test, treatment or other medical procedure
  • Consent was discussed and/or signed after the patient was sedated or was otherwise impaired to understand what (s)he was reading and signing

There must be a link between the lack of informed consent and an injury to the patient to justify a medical malpractice case.