The legal standard for informed consent is much more complex than the standard for total failure of consent. A lawsuit for "failure for informed consent" concedes that the patient consented to the therapy (thus ruling out battery) but alleges that the patient did not understand enough about the therapy for the consent to be effective.
In most states, the jury must answer four questions to determine liability:
1. Did the patient understand enough about the treatment to give an effective consent? If the answer to this question is no, then:
2. Was the patient given the same information that other patients in the same circumstances are given? If the answer to this question is no, then:
3. If the patient had been given the proper amount of information, would the patient have consented to the treatment? If the answer to this question is no, then:
4. Was the patient warned about the complication that occurred?
The health care provider can be held liable for failure of informed consent only if all four questions are answered no. Since the determination of what like patients are told is a matter of medical opinion, it must be determined by the testimony of an expert witness.
The final hurdle is the measure of damages. Even if the jury finds the health care provider liable for failure of informed consent, the patient may collect only the actual damages flowing from the accident. A procedure that does the patient no harm will not support a monetary award, despite a finding of a failure of informed consent.
A successful action for failure of informed consent requires the occurrence of a severe risk that results in a serious injury to the patient. The courts will not accept a suit based on a failure of informed consent in the absence of significant harm. It is important to contrast this with the action for battery, a tort of intent, where the physical consequences of the touching are ancillary to the damages awarded for the tort. The public policy behind the different standards for battery lawsuits and informed consent lawsuits is based on the lack of intent in informed consent lawsuits. The courts punish intentional torts to preserve order in society. If one person intentionally invades another's person, this is an injury to dignity. Mere compensation for the physical harm involved would allow one person to injure another with little fear of a significant penalty. This would lead to persons seeking private retribution, a legally undesirable situation.
In a negligence-based tort, such as failure of informed consent, the courts follow the public policy decision that persons should not be punished for negligence that causes no harm. They are responsible for any damages that are the direct result of their actions, but only for "actual" damages, not dignitary injuries. This is the basis for the four requirement that must be met before an award will be granted for failure of informed consent. For example, if the patient was properly warned about the complication that occurred, there will be no liability for the injury, regardless of whether everything else told the patient was misleading. The courts do not look at the transaction as a whole.
The most difficult problem to deal with is whether the omitted information would have deterred the patient from undergoing the therapy. In almost all cases of proper medical therapy, the jury will assume that a reasonable patient would have undergone the therapy. The difference between the theoretical tort of failure of informed consent and the actual case law on this tort stems from this assumption.
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