Informed Consent—Protection for Both Patient and Practitioner

When someone mentions “medical malpractice,” we usually think of the horror stories: a surgeon operates on the wrong leg, a nurse administers potent drugs to the wrong patient. But not all claims against practitioners arise out of human error.  Sometimes a dissatisfied patient will bring a claim based on an outcome even if it is a known risk not attributable to any mistake of the care provider.

Mistakes and side-effects are not the same—a nuance that frequently goes unnoticed by those experiencing the medical equivalent of “buyer’s remorse.”

That is where the doctrine of “informed consent” comes in. Disclosure by the medical practitioner of “a substantial and significant risk of causing the patient serious harm” before the treatment is initiated allows patients to judge for themselves what constitutes an acceptable degree of risk. For instance, a patient with a diagnosis of cancer may opt in appropriate circumstances for aggressive extraction versus tissue conservation, each with its own sets of risks. However, a surgeon should not face litigation merely because a patient decided post-surgery that the procedure was not worth the outcome.

Utah law recognizes this fundamental unfairness, which is why it begins with a presumption that the patient gave consent for the treatment received. It is the burden of the patient to prove that he or she was not informed of “a substantial and significant risk” of “serious harm” and that “a reasonable, prudent person in the patient’s position [prior to the treatment] would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent.”[1] The patient must then prove that the unauthorized part of the treatment caused personal injury or harm.

Treatment providers have additional protections if they chart the patient’s reactions to the discussion of risks and if the patient or patient’s representative signs a written consent to the procedure. [2] Please note: A written consent can be invalidated if the person signing lacked capacity to consent or if the signature is secured by fraud.

That said, not all risks need to be disclosed, including those considered common knowledge, or when doing so would jeopardize the patient’s condition. Generally speaking, the more substantial the harm of the potential side-effect and the more likely it is to occur, the greater the need to inform the patient of it.

Ultimately, Utah’s informed consent laws do not immunize doctors, nurses, or other professionals from conduct that fails to meet the industry standard of care, but it does recognize that an unfortunate outcome does not necessarily mean that the treater did anything wrong.

If you are a medical provider who would like review of your patient consent procedures, please don’t hesitate to contact me directly to discuss your specific risk management needs.

Skoubye, Nielson, Johansen Attorneys Salt Lake City Utah

Michael D. Lichfield

[1] Utah Code Section 78B-3-406

[2] Competent adult patients may give their own consent. Parents, or persons fulfilling that role whether or not formally appointed, may give consent on behalf of their minor children. Adult children of incapacitated adults may give consent on behalf of their parents, and grandparents and adult siblings may give consent on behalf of minor grandchildren/siblings in the absence of a parent. Consent by the mother regarding pregnancy or childbirth covers both mother and child.