Almost without exception, the case that are categorized as informed consent cases actually involve significant negligence in the medical care in addition to the failure of informed consent. This underlying theme is extremely important to the quality control consequences of informed consent. In order to understand the important of this ancillary negligence, the mechanism by which a jury reaches a verdict must be discussed. It is this process, not the legal theory of informed consent, that has led to the informed consent case law.
Juries look at the total situation involved in the lawsuit, not just the legal theories presented by the lawyers. If the jury members decide that the plaintiff deserves to win the lawsuit, they will fit the facts into the available legal theories in such a way as to reach a verdict favorable to the plaintiff.
As an example, take a case where the plaintiff is a woman who suffered permanent paralysis from a spinal anesthetic administered for childbirth. The plaintiff's lawyers argue two theories: negligence in administering the agent, and failure of informed consent. The plaintiff is able to show factually that there were certain irregularities in the administration of the agent, but is unable to find an expert who will describe these irregularities as negligent. (Without this expert testimony, the law holds that the plaintiff is not entitled to a judgment, irrespective of whether the jury believes the irregularities to be negligent.) The plaintiff is also able to show, using the defendant doctor as a witness, that the standard of care is to explain the side effects of spinal anesthesia before obtaining a consent to use it. The plaintiff then argues that she was not properly informed of the dangers of the anesthesia and that, had she been warned, she would have chosen another form of anesthesia.
The jury is prevented by law from finding the defendant physician liable for negligence, because of the plaintiff's inability to product expert testimony supporting this point. Assuming that the jury believes that the doctor was, in fact, negligent, it may still find for the plaintiff by holding that there was a failure of informed consent. While this would then be reported as an informed consent case, the true issue was the physician's negligence in the administration of the anesthetic agent.
Careful analysis of the case law on failure of informed consent demonstrates that almost all of the cases involve very questionable fact situations. The juries involved in these cases may have justified their judgments with an informed consent theory, but the true basis for their decisions was an attempt to compensate a plaintiff who they believe had been the victim of negligent therapy. This is in contrast to the legal theory of informed consent, which ignores the presence of ancillary negligence and looks only to the isolated finding of a failure of informed consent. When a case like our hypothetical case is appealed, the appellate judge's opinion may contain sweeping pronoun cements about the legal basis for informed consent. This, however, does not alter the fat that juries generally do not base judgments on a failure to informed consent unless the patient has been seriously injured by questionable care.
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