Typically, an “informed consent” issue arises when a patient suffers an injurious or harmful outcome from a treatment, surgery, or procedure. The harmful or injurious outcome does not appear to be the result of any negligence. The patient alleges that he or she was never informed of the possibility of occurrence of the resulting injury or harm.
From that point, the causative factor of the harm or injury must be analyzed. If the negative result (injury or harm) was a foreseeable complication or foreseeable risk, but the possibility of its occurrence had not been communicated to the patient in advance, there may be an actionable case of “lack of informed consent.”
In order to prevail on a charge that a doctor performed a treatment or procedure without “informed consent,” the patient must usually show that, had the patient known of the particular risk, outcome, or alternative treatment allegedly not disclosed, the patient would not have opted for the chosen treatment or procedure and thus, would have avoided the risk. In other words, the patient must show a harmful consequence to the alleged failure to disclose.
There are unique applications of the doctrine of informed consent, such as in cases involving medical subjects for research, patients of minority age, mentally incompetent patients, etc. The basic premises still apply, however, either directly or indirectly through a surrogate decision maker.