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Can I Be Sued for Failure to Obtain Informed Consent?

Question: I normally use an informed consent process in my practice, but not always. Can I really be sued for failing to obtain my patients' informed consent before treatment?

Answer: Implementing an informed consent process in your practice on a consistent basis is advisable. That's because in today’s legal environment, failure to obtain a patient’s informed consent is a component of almost every malpractice case. And patients increasingly feel it is their right to be informed and to participate in decisions about their care. 

From our perspective, NCMIC will defend you whether or not you choose to implement an informed consent process into your practice. However, if you are in a state that requires informed consent, your defense could be compromised if you fail to meet the state’s mandate.

If you decide to proceed with an informed consent process in your practice, keep in mind the process generally requires the patient to fully appreciate:

  1. The nature of the treatment to be rendered
  2. All material risks associated with the treatment and the possibility that those risks will occur
  3. Alternative treatments available and their associated risks
  4. The risks of not being treated

As you can see, this means informed consent is not merely a form (see sample form - PDF) but rather a two-way process in which patients are asked if they understand the risks of care and are given an opportunity to ask questions. The patient must understand the information well enough to be able to relate it back to you.

In terms of the informed consent documentation, the patient should be given sufficient time to read and review the form thoroughly before signing it. And the entire informed consent discussion and process should be documented in the records to substantiate that the patient understood what they were signing.

As always, check with your board of examiners, personal counsel, and/or state association to determine the legal requirement for informed consent in your state. The laws are changing and most states now have statutory requirements.

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