WHAT IS “INFORMED CONSENT”?
The patient must receive “sufficient information to make a meaningful decision” about their healthcare (Cobbs v. Grant (1972) 8 Cal.3d 299).
When a doctor recommends a particular procedure, then he or she must disclose to their patient all material information necessary to the decision to undergo the procedure, including a reasonable explanation of the procedure, its likelihood of success, the risks involved in accepting or rejecting the proposed procedure, and any other information a skilled practitioner in good standing would disclose to the patient under the same or similar circumstances (Mathis v. Morrissey (1992) 11 Cal. App.4th 332, 343).
“Material information” was defined by the Court in the case of Truman v. Thomas as:
“That which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure to be material, a fact must also be one which is not commonly appreciated. If the physician knows or should know of a patient’s unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure” (Truman v. Thomas (1986) 27 Cal. 3d 285, 291).
The definitions of the healthcare providers’ duties of providing information to the patient has evolved largely from the case law.
Judicial Council of California Civil Jury Instructions (CASI) 532 and 533 are given by the judge to the jury in all cases in which the plaintiff alleges that the physician failed to obtain informal consent.
In summary, a patient’s consent to a medical procedure is supposed to be informed. Informed consent only after the physician has explained the proposed treatment or procedure. A medical care provider must explain the likelihood of success and the risks of a proposed medical procedure in language that the patient can understand. The medical care provider must explain any risk that a reasonable person would consider important in deciding to have or reject the procedure. A medical care provider is not required to explain minor risks that are unlikely to occur.
The test is whether a reasonable person would have considered the information important in deciding whether to accept or refuse a proposed medical treatment or procedure. Even if that does not occur, however, the Court can make this requirement meaningless if it is found that the court/jury believes the patient would have undergone the procedure anyway, as if fully informed. Failure to obtain an informal consent is usually treated as negligence. The healthcare provider can be held liable for damages suffered by the patient from material risks that occur, if there was no informed consent or conditional consent for the procedure that was given, or conditions were not met or the patient consented to one procedure, but another one was performed.