The Role of Informed Consent in Legal Claims

Most people associate medical consent with paperwork, but it goes beyond that. Your informed consent form must describe the risks, benefits, and alternatives of treatment that healthcare providers have a duty to disclose.

If a provider fails to obtain your informed consent, legal action may be a possible avenue for recovery after a treatment causes undisclosed harm. Follow along as our medical malpractice attorneys explain how these cases work.

This is a communication process between a healthcare provider and a patient that discloses information and ensures comprehension, so the patient may authorize a specific medical treatment.

What Must NC Physicians Disclose to Patients?

Under North Carolina law (N.C. Gen. Stat. § 90-21.13), the doctrine of informed consent requires a healthcare provider to disclose enough information for a reasonable person to gain an understanding of the following factors:

• The diagnosis, including the name and nature of a condition
• The nature and purpose of the proposed treatment or medical procedure
• The usual and most frequent risks, including potential complications, that are recognized by other providers in the same field
• Anticipated benefits that the treatment is expected to achieve
• Alternative, medically recognized treatment options and the risks and benefits of each
• Non-treatment consequences or risks of denying treatment

Most non-emergency medical procedures, including surgeries, invasive procedures, and other treatments that carry meaningful risk, require a patient’s consent. The general rule is that providers must ensure patients have enough information to make a voluntary, educated decision about their care.

Limited exceptions may waive a failure to obtain informed consent, such as:

• Medical emergencies, where immediate treatment is necessary to prevent serious harm or death and the patient is unable to provide consent
• Patient incapacity, when a legally authorized representative provides consent on the patient’s behalf
• Therapeutic privilege, a narrow exception where disclosure may be limited if it introduces other serious risks (this can vary by local laws)

The provider’s disclosure must align with what other members of the same healthcare profession with similar training and in the same or similar community would have communicated. When a physician fails to obtain informed consent and the material risk occurs, he or she may potentially face liability for the patient’s harm.

It is legally necessary to separate lack-of-informed-consent medical malpractice cases from those involving treatment errors. A poor outcome alone does not establish liability. These claims focus on the timeline before the procedure and the patient’s education on their care.

Failing to warn, disclose, or inform the patient of potential risks, alternatives, and expected outcomes are situations that raise legal concerns, whether medical mistakes occurred or not.

A physician’s lack of informed consent shifts to a medical malpractice case when it’s determined that a patient would have refused treatment had the physician provided adequate information (that a reasonable patient would need for a sound decision).

Healthcare providers raise several defenses in response to informed consent legal claims. Here are three warnings our law firm wants our clients to look out for:

The provider may argue that all required information was disclosed and that the patient gave informed permission for the procedure when key facts were not explained.

The doctrine requires physicians to disclose material risks which are those that the patient would consider important. Providers may argue the risk was too remote or insignificant to warrant informing the patient.

In urgent situations, providers may rely on the doctrine of sudden emergency or other recognized exceptions to justify proceeding without full disclosure.

Any signed written consent form is presumed to be valid unless you can prove it was obtained through misrepresentation. A plaintiff’s case must typically establish these key elements:

• Duty: North Carolina’s legal standards obligated the physician to disclose the risk that materialized.
• Breach: The defendant’s disclosure was inadequate compared to what a provider in a similar situation would have disclosed.
• Causation: The individual would have declined or delayed treatment had the risk been properly explained.
• Damages: The harm caused tangible physical or mental injuries, financial losses, or pain and suffering, documented through medical records, bills and statements, and personal and professional testimony.

Demonstrating these facts can be challenging and typically requires expert testimony from subject-matter experts and physicians; finding a medical malpractice lawyer can be essential to gaining the resources necessary to proving consent claims.

If you believe a healthcare provider failed to obtain your informed consent and you experienced harm as a result, it may be helpful to speak with an attorney familiar with North Carolina medical malpractice law. These cases often involve complex questions about disclosure, causation, and medical standards of care. Contact the team at Miller Law Group for a free evaluation.