Bad Results, Undeniable Negligence (Res Ipsa Loquitur) & Informed Consent

Medical malpractice suits cases take aim at harms arising from negligently provided health services. Typically, a patient must show a deviation from the standard of care to prove such claims. As outlined in Medical Malpractice Part One, aA successful claim usually requires a showing that the physician deviated from accepted medical customs or practices. Even if there are bad harmful results, a physician is typically shielded from liability if they acted according to custom. In some instances, however, a physician can be liable without proof of deviation from custom. This article will discuss the two major circumstances giving rise to such liability. First are instances where the harm suffered is such that it could only occur by negligence, which is known by the term res ipsa loquitur negligence. Second, there are instances where the patient was not fully informed of the risks and harms associated with treatment, which is governed by the legal doctrine of informed consent.

Bad Poor results from a medical treatment or procedure are not always evidence of negligence. Because of theDue to the inherently risky nature of medical practice and the tremendous benefits that practice provides, courts generally do not impose liability upon physicians who act within the bounds of medical custom. In other words, some risks are inherent to particular procedures or treatments and physicians are generally not liable if those injuries crop up. Sometimes, however, an injury arises that could not occur without some negligent act. In the typical case, there is a deviation from custom that gave rise to the injury, but in some cases a plaintiff may have a difficult time proving such a deviation.

A plaintiff may resort to res ipsa loquitur to attach liability where no specific deviation from custom can be identified or proved. To establish res ipsa negligence requires a showing that the plaintiff’s harm could only be have been caused by negligence, and that the defendant was the source of the negligence. Proving the existence of negligence requires showing that common knowledge and experience indicates that the harm could not have occurred without negligence. A plaintiff may combine this argument with expert testimony supporting that the suffered harm would be avoidable with reasonable care. To establish that the defendant was the source typically requires a showing that the defendant had control of the instrumentality that caused the harm. This is a fairly low standard, and is usually supported by any evidence that points to the defendant as the most likely source of the harm.

Physicians are generally not liable for harms arising from risks inherent to medical procedures and treatments, but they must inform their patients of such risks. Patients have a right to know all the material facts, risks, potential consequences of, and alternatives to medical treatments or procedures. Patients also have a right to refuse any or all medical treatments (i.e. to refuse consent). The doctrine of informed consent is underpinned by these two ideas. A patient who is not fully informed of the risks involved in a treatment is incapable of consenting to those risks because they did not know about them.

To establish a claim under the informed consent doctrine requires proof of five elements:
1) Non-disclosure of material or required information,
2) Actual damages (physical harm),
3) Resulting from the undisclosed risks,
4) That knowing the risks, the patient would have refused treatment, and
5) That reasonable persons under similar circumstances, knowing the risks, would also have rejected treatment.

The non-disclosure of information is the first element in a lack of informed consent claim. There are two major theories on what and how much information must be disclosed. The first and older standard of disclosure only requires the physician to divulge what is customary in the medical field. In other words, if it is not customary for physicians to disclose the information then there is no requirement to do so, even if a patient would find it important or material. The second standard requires disclosure of all information the physician could reasonably expect a patient would want to consider in making a decision about what, if any, treatment to receive. The states are divided on this issue. The exact requirements for disclosure are dependant on specific factual circumstances like the nature of the procedure or the physical condition of the patient.

The next two elements in an informed consent require a plaintiff to have suffered a tangible harm from the undisclosed risks. In the context of medical malpractice, tangible harm is physical injury and other direct actual losses, such as lost wages. The injury must be a result from the undisclosed risk. A plaintiff does not have an informed consent claim if a physician fails to disclose a risk of nerve damage, but the patient suffers from a disclosed risk of infection.

The next two elements are causal and require that the patient would have chosen differently if fully informed. The first of these causal elements require that the plaintiff prove they would have declined the treatment had they been informed. This is a subjective standard. The second standard requires that a reasonable person would also have refused treatment. In other words, a claim for informed consent requires that the general population would consider it reasonable to have refused the treatment under the circumstances.


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