Informed Consent and Medical Malpractice Cases
At trial, the doctor wanted to tell the jury that our client had signed consent forms and, therefore, she accepted the risk of a bad outcome. The trial judge said such evidence was improper. In reality, defendants always say this, mostly to confuse the jury into thinking that patients accept certain “risks” when they have surgery. What they want is a free pass even if the bad outcome is caused by the doctor’s own negligence.
It seems that in every medical negligence case the doctor and the lawyer try to confuse the jury by bringing in the consent forms. Such forms are irrelevant in a medical negligence case. The patient never consents to the risk of negligently performed treatment. Rather, the patient merely consents to the risks of a properly performed procedure.
The jury agreed with us and awarded our client damages. The doctor appealed. In 2012, the Oregon Court of Appeals agreed with us and the jury verdict was upheld. Mrs. Warren eventually obtained justice from her case.
You might ask, isn’t this “old” news? Yes and no. I did blog on this particular case back on March 10th. However, on March 25, 2015, the Pennsylvania Supreme Court relied upon our Warren case in the case of Brady v. Urbas. In that case, the Pennsylvania Court said:
The fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence.
In reality, this simply makes sense. If you are negligent, you cannot avoid responsibility for the harms you cause by claiming the victim knew there were risks. To do so would be similar to allowing a driver who runs a red light to avoid responsibility for injury by claiming the person he broadsided should have “assumed the risk” that someone else would break the law. Simply put, the law does not operate that way.
By signing an informed consent form, you have not given up your rights if you are harmed by negligent conduct.