Defenses

Certain injuries or harms may occur inevitably, and even be foreseeable, despite the best of care and the presentation of comprehensive information to the patient regarding options, risks, foreseeable outcomes, and prognoses. In fact, one of the most viable defense to a charge of “lack of informed consent” is that the resulting harm or injury was a “known risk” and that the patient assumed the risk of its occurrence when the patient consented to the surgery, treatment, or procedure. (This would be true if the patient had been warned of the potential occurrence of the specific harm or injury and chose the surgery, treatment, or procedure anyway.)

Other viable defenses include the unforeseeability of the harm or injury or that its occurrence was so remote that the doctor had no duty to otherwise advise the patient of the possibility of that particular harm or injury. There is no duty to obtain consent in an emergency where attempts to obtain consent would delay vital emergency treatment. Additionally, doctors may withhold information from a patient if, in the doctor’s professional judgment, disclosure would be upsetting to the patient or would substantially interfere with effective treatment. This is referred to as “therapeutic privilege.”

Finally, a physician may defend that the patient chose not to hear all the information. Some patients do not wish to participate in medical decision-making and simply defer to the physician’s best judgment. Under such circumstances, doctors generally have patients sign waivers giving up their rights to full disclosures. If the patient had prior knowledge of the risks (having undergone the surgery or procedure previously), or if the risks are common knowledge (such as pain following suturing a wound), there is generally no duty to repeat or expressly inform of these risks.


Inside Defenses