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Medical malpractice and the boundaries of informed consent

Medical professionals in Aurora carry a heavy responsibility. Not only do they hold their patient's health and well-being in their hands, but they also have a duty to reasonably inform a patient about the care they are to receive so that the patient can provide informed consent to any medical procedure. Failing to obtain informed consent can lay the foundation for a medical malpractice lawsuit should something go wrong during the operation. Yet, even defining the boundaries of informed consent can be a challenging legal issue.

Although a doctor needs to inform a patient about the potential risks of a surgical procedure to be performed, some may wonder if he or she also needs to disclose additional information such as his or her experience as a surgeon. Generally speaking, there are two standards with regard to informed consent. The first is the reasonable patient standard, which looks at the matter from the patient's perspective. Illinois does not follow this approach. The second standard, and the one recognized in Illinois, is the reasonable physician standard. Here, a doctor must disclose the risks associated with an operation as well as the likely results and any alternatives that are available, but only to the extent that another doctor in the same circumstances would make.

Illinois courts have refused to find that the reasonable physician standard reaches to the doctor's experience. Instead, the courts have held that doctors only need to disclose those elements that are material to the operation itself.

What does this mean to families who have lost a loved one to suspected medical malpractice? It means that they need to be ready to present evidence as to how a doctor acted negligently, including as it relates to obtaining informed consent. Showed that a doctor failed to disclose his lack of experience is not enough. Instead, surviving family members must show that there was nondisclosure of major issues relating to the operation itself, and that the victim would not have undergone the deadly operation if that information had been disclosed.

Source: The National Law Review, "Informed Consent for Surgery in Illinois: Does Surgeon's Experience Level Matter?" John Hoelzer, Dec. 27, 2016

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