Lugenbuhl v. Dowling

Informed Consent

The most commonly asserted defense to an intentional tort is consent. Consent must be informed before it can be a valid defense. “Informed consent” requires that the person be advised (1) in advance (2) of the specific risks being consented to (3) in a manner and to a level of detail that (4) can reasonably be understood by the person asked to give the consent.

A general consent that does not provide adequate information about the risk may not be effective. Likewise, consent to one type of risk will not usually be transferred to another type of risk not covered by the consent.

To protect themselves against claims based on a lack of informed consent, healthcare providers routinely require patients to sign written informed consent forms. These forms typically list every known risk associated with the medical procedures to be performed and acknowledge that the risks are understood and accepted by the patient.

The informed consent form authorizes the physician (or someone under the direction of the physician) to take necessary action should something be discovered during surgery that is best treated while the patient is already under sedation and unable to give consent. After all, few patients would want to wake up in the recovery room of the hospital only to be asked to consent to a second operation.

The medical profession, in order to shield itself from Battery claims whenever lack of informed consent is alleged, has lobbied successfully in many states to have these claims treated as ordinary cases of medical malpractice.

The following case provides an overview of the issues involving informed consent and medical malpractice.