Informed Consent for Surgery Law

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 What is Surgical Consent?

In general, surgical consent means that an individual has given their doctor or surgeon permission to perform a procedure on them. If the doctor or surgeon fails to obtain consent and moves forward with the surgery anyway, they can be charged with a criminal offense.

In addition to surgical consent, an individual is required to provide informed consent. Informed consent means that the individual has been informed of all of the potential risks and consequences that may be associated with the procedure.

In contrast to surgical consent, which provides that the individual agrees to the surgery, informed consent assumes that the individual has a complete understanding of what may occur during or after the procedure.

Both of these forms of consent are required by law. Therefore, an individual must provide both to their doctor or surgeon before they can legally perform the operation.

Does it Have to Be a Written Document?

Consent for a surgical procedure does not necessarily have to be in writing. However, a doctor or surgeon is legally required to obtain some form of consent, either in writing or oral form, before they can proceed with a procedure.

Can I Take Back My Consent to Surgery?

Yes, an individual may withdraw their consent to surgery at any time prior to when the surgery is scheduled to occur. There are, however, certain situations in which a patent may revoke their consent even after a surgery has already been performed.

The factors that a court will consider when determining whether or not a patient provided proper consent tends to be based on the mental competency of the patient.

For example, they may consider whether the patient was or is:

  • A minor;
  • In labor;
  • Mentally ill or disabled;
  • Under the influence of prescription medication, drugs or alcohol;
  • In a partially conscious state; or
  • Experiencing great pain or stress at the time of consent.

In other words, for an individual’s consent to be valid, it must conform with surgical consent guidelines, which require that:

  • The patient’s consent is given voluntarily;
  • After they have been fully informed of the risks and consequences; and
  • The patient possesses the mental capacity required to understand and make informed decisions.

What Is the Difference Between “Consent” and “Informed Consent?”

Although the terms consent and informed consent are almost the same concept, there is a key distinction between the two, including:

  • General consent to a surgery means that an individual has given the doctor permission to undergo the procedure. This consent prevents the doctor from being charged with a criminal battery;
    • This is because, without an individual’s consent, surgery is essentially legally no different from a doctor attacking the patient with a scalpel;
  • Informed consent means that an individual has not only consented to the procedure, but is fully knowledgeable about all of the possible risks and consequences;
    • A doctor that has only simple consent, but not informed consent, cannot, in general, be charged with a criminal battery. Instead, they may face liability for professional negligence or malpractice instead;
      • A doctor may also face a lack of informed consent lawsuit;
    • To be able to provide informed consent, an individual must be in full control of their faculties and to be legally capable of providing such consent.

What Are Some Things That Can Invalidate My Consent?

There are several issues that make it legally difficult for an individual to consent to surgery, including being:

  • Mentally ill;
  • Mentally disabled;
  • A minor;
  • Under the influence of drugs or medication;
  • Under great stress or pain at the time of consent;
  • Semi-conscious;
  • Intoxicated; or
  • In labor.

This is not a comprehensive list and is only some of the examples of conditions that can arguably invalidate any consent that an individual provides.

What Constitutes Informed Consent?

Prior to obtaining an individual’s consent for surgery or anesthesia, the law requires a doctor to inform the patient of the common risks associated with the procedure. This includes risks that may not be serious as well as the serious risks that may arise, such as death, even if they are uncommon.

If an individual suffers a series of mild side effects from a surgery that they were not warned about, such as cramps or headaches, and those side effects are commonly associated with the surgery, a doctor may be held liable. However, an individual’s recovery would be limited due to the minor nature of their suffering.

If, however, the patient suffered a serious side effect from an operation that they were not warned about, even if the side effect was very rare, the doctor or hospital may face the consequences of failure to obtain informed consent. This also applies in cases where the patient was warned but it was done in a way that was difficult for them to understand.

Consent While Medicated or in Pain

Attempting to obtain consent from a patient who is either in great pain or who is on pain medication can be a double-edged sword for a doctor. It is common for hospitals to follow one of two practices, including allowing a doctor to obtain consent from a patient who has been sedated to relieve their pain or deliberately withholding pain medication from the patient in order to obtain clear consent.

Obtaining consent while the patient is on the pain medication may raise intoxication issues. On the other hand, withholding pain medication to obtain consent may raise duress issues.

If a patient is sedated, they may not be capable of fully understanding the risks the doctor informs them about and their consent may be invalid. If a patient is not sedated and they are in great pain, they may feel pressured to consent so they can obtain medication to relieve their suffering.

In this case, the patient’s consent would also be invalid. Studies have shown that providing medication before a surgery may actually enhance a patient’s ability to make decisions because it provides pain relief or relief from emotional distress.

This allows the patient to focus on the choice they are making.

After My Surgery, I Found Out There Were Many Risks That I Was Not Informed Of. What Should I Do?

In the majority of states, if an individual discovers information about a non-disclosed risk or complication that may arise from the surgery, but they already had the surgery, they will not be able to sue unless they actually suffer from those complications. This means that, in general, an individual cannot sue if, after their myomectomy, they discover that there was a slight risk that they could have died that they were never informed of.

This is, of course, unless the individual actually dies as a result of the surgery.

Can an Attorney Help Me?

If you have undergone any type of operation that you feel may not have been necessary or you did not understand or if you have suffered from side effects that you were not informed may occur, you should consult with a personal injury lawyer as soon as possible. Your lawyer may be able to offer you a free consultation.

Your lawyer can advise you of what your options are as well as what parties may be liable for your suffering. Your lawyer can also clarify the many circumstances that might invalidate any consent you may have provided for the surgery as well as discuss the possible medical malpractice recovery limits that may apply in your state.

Doctors and hospitals typically have large legal teams that are ready to defend against any claims of malpractices. Because of this, it is essential to have the assistance of an attorney with knowledge of how to handle these types of cases.


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