Texas law requires physicians to go through the informed consent process with patients before providing treatment or surgery. The same requirement applies to physician assistants and nurse practitioners.
Although many hospitals and practice groups have registered nurses handle informed consent paperwork, Texas law considers it a non-delegable duty of the doctor or mid-level provider.
In my experience, informed consent conversations often tout the benefits of a proposed treatment or surgery but err on the lite side when it comes to discussing risks and alternatives. And, of course, one significant alternative to a proposed treatment or procedure is doing nothing at all.
Cause of action for consent issues
Many people ask about what the legal effect is of treatment or surgery proceeding when there’s a lack of informed consent. There are two potential answers to this question.
When there is a total lack of consent, Texas law recognizes a cause of action for medical battery. Just like normal people outside a health care context, doctors, surgeons, and other healthcare providers aren’t allowed to touch a person without permission.
More commonly though, we will encounter situations where there’s a signed informed consent form, but the patient wasn’t told about risks and alternatives. In this situation, Texas Civil Practice & Remedies Code Section 74.101 allows an informed consent cause of action.
The statute provides that there’s a theory of recovery for lack of informed consent based on “the failure of the physician or health care provider to disclose or adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider [when the] negligence in failing to disclose the risks or hazards . . . could have influenced a reasonable person in making a decision to . . . withhold consent.”
Thus, to prove an informed consent cause of action under Texas law, the plaintiff must demonstrate that had proper disclosure of the risks or hazards occurred before the treatment or procedure, a reasonable person would have withheld consent. In other words, it’s not enough that a particular plaintiff would have not consented.
Lawsuits and informed consent
Just because the patient signed an informed consent form doesn’t mean that they hospital, physician, or other healthcare provider is released from any type of negligence. Informed consent forms are designed to disclose to patients the potential risks of medical care, treatment, or surgery that can happen even with proper care. These are called known risks and can happen even when there was not a mistake, and everything was done properly.
Think of it like this: An informed conversation or signed form never gives surgeon, physician, or healthcare provider permission to be negligent or violate the standard of care.
Even though healthcare defendants like to trot out consent paperwork in virtually every medical malpractice lawsuit, it’s usually a red herring argument.
In some cases, though, the question of informed consent is the central issue. In my experience, the most common situation is where a patient was injured by a known risk—but the underlying surgery was never needed in the first place.
Thus, if there’d been adequate informed consent, a reasonable person would have declined to proceed with surgery, meaning the known risk, which in and of itself wasn’t caused by negligence, would have been avoided. It’s possible to proceed in a medical malpractice lawsuit against health care defendant in a situation like this.
If you’ve been seriously injured because of poor hospital or medical care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
