Just about everyone is familiar with signing a consent form before a medical procedure is performed. But a signature alone does not satisfy New York’s legal standard for informed consent. Courts have consistently held that caregivers must engage in a meaningful conversation that allows the patient to make an educated decision about their care. When that conversation is rushed, incomplete or misleading, a medical malpractice claim may arise.
Under NY Public Health Law §2805-d, a physician must clearly explain the nature of the proposed procedure, the reasonably foreseeable risks and benefits and the available alternatives, including the option of no treatment at all. New York courts evaluate malpractice claims based on lack of informed consent by asking whether a reasonably prudent patient, had they been properly informed, would have declined the procedure or chosen a different course of treatment.
Common failures of informed consent forms that can give rise to liability include the following:
- Incomplete risk disclosure — A physician lists only the most common risks and omits less frequent but serious complications that a patient would want to know about before consenting.
- Rushed or cursory discussions — The consent conversation occurs moments before a procedure with no meaningful opportunity for the patient to ask questions or consider alternatives.
- Generic or boilerplate language — The consent form uses broad, vague language that does not reflect the specific risks of the particular procedure being performed.
- Failure to discuss alternatives — The physician does not explain that other treatment options exist, leaving the patient unaware that they had a choice.
Claims of lack of informed consent often arise in cases involving surgical procedures, obstetric care and cancer treatment. These areas often involve complex decisions and significant risks, making thorough communication essential. Providers must also tailor their explanations to the patient’s level of understanding, avoiding overly technical language, and confirm the patient’s comprehension.
There is a distinction between a lack of informed consent and negligent performance of a procedure. A patient who was properly informed about the risks of a surgery but experienced a known complication may not have a viable informed consent claim. However, when a risk that was never disclosed materializes and causes harm, or when a patient would have chosen differently had they been properly advised, the failure to obtain meaningful consent can form the basis of a malpractice claim independent of how the procedure itself was performed.
An experienced New York medical malpractice attorney can evaluate the circumstances of your situation and determine whether inadequate consent played a role in the harm you suffered.
The law firm of Rich & Rich, P.C. represents victims of medical malpractice throughout the Greater New York area and Long Island. We have offices in midtown Manhattan and Roslyn Heights. Call us at {PHONE} or contact us online to schedule your free consultation.