Informed consent is a legal and ethical requirement in Pennsylvania that ensures patients understand the risks, benefits, and alternatives of a medical procedure before agreeing to undergo treatment. When a doctor fails to properly inform a patient or does not obtain their consent, it may be considered medical malpractice.

Understanding Pennsylvania’s informed consent laws is essential for patients who want to protect their rights and for medical providers who must comply with the law. This guide explains what informed consent is, when lack of consent qualifies as malpractice, how to prove a case, and what steps to take if you were treated without proper consent.

What is Informed Consent in Medical Treatment?

Definition of Informed Consent

Informed consent means that a patient voluntarily agrees to a medical procedure after being provided with enough information to make an informed decision. A doctor must explain the procedure’s purpose, risks, benefits, and alternatives, allowing the patient to decide whether to proceed.

For informed consent to be valid, the patient must:

• Have the mental capacity to understand the information.
• Receive information in plain language that they can understand.
• Give voluntary consent without coercion or pressure.

Why Informed Consent is Important

Informed consent ensures that patients have control over their medical decisions. Without it, a doctor may perform a procedure that the patient would not have agreed to if they had known all the risks.

For example, if a doctor fails to disclose a 5% risk of permanent nerve damage, and the patient suffers that complication, the patient may claim they would not have consented if they had been warned.

Lack of informed consent violates patient rights and may lead to medical malpractice claims.

Pennsylvania Medical Malpractice Laws and Informed Consent

What Does Pennsylvania Law Say About Informed Consent?

Pennsylvania law requires doctors to obtain informed consent before performing certain high-risk procedures. The Medical Care Availability and Reduction of Error (MCARE) Act outlines what is legally required when obtaining consent.

Medical Procedures Requiring Informed Consent in Pennsylvania

Under Pennsylvania law, doctors must obtain informed consent before performing:

1. Surgeries
2. Radiation therapy
3. Chemotherapy
4. Blood transfusions
5. Experimental treatments
6. Organ transplants

If a doctor does not obtain consent before performing one of these procedures, the patient may have grounds to file a medical malpractice lawsuit.

What a Doctor Must Disclose to Obtain Consent

For informed consent to be legally valid, doctors must provide key information about the procedure, including:

1. The name and nature of the procedure.
2. The potential risks and side effects.
3. The expected benefits and the procedure’s success rate.
4. Alternative treatments, including no treatment at all.

If any of this information is missing, misleading, or unclear, the patient may argue that their consent was not truly informed.

When is Lack of Informed Consent Considered Medical Malpractice?

How Can a Patient Prove Lack of Informed Consent?

To file a medical malpractice lawsuit based on lack of informed consent, a patient must prove three main points:

1. The doctor failed to disclose a material risk: A material risk is any risk that a reasonable person would want to know before deciding on a treatment.
2. The patient would have reconsidered the procedure if properly informed: The court will consider if the undisclosed risk would have changed the patient’s decision.
3. The patient suffered harm due to the undisclosed risk: If a complication occurs that was not disclosed, and it negatively affects the patient, the patient may sue.

Examples of Lack of Informed Consent Cases

Common examples of lack of informed consent lawsuits include:

1. A surgeon not informing a patient about a 10% risk of paralysis, and the patient later becoming paralyzed.
2. A doctor performing a different procedure than the one the patient agreed to.
3. A physician failing to discuss alternative treatments, leaving the patient unaware of a safer option.
4. A patient undergoing an experimental procedure without full disclosure of the risks.

How to Prove Lack of Informed Consent in Pennsylvania

What Evidence is Needed for a Malpractice Case?

To win a lack of informed consent lawsuit, a patient must present strong evidence showing that they were not properly informed. Some of the most important evidence includes:

1. Medical Records and Consent Forms: If signed consent forms are missing, incomplete, or unclear, it may suggest that the patient was not properly informed.
2. Witness Testimony: If family members or friends were present when the doctor explained the procedure, they may provide testimony about what was or was not disclosed.
3. Expert Medical Testimony: Medical experts can determine whether the doctor met the standard of care and whether the patient received enough information to provide informed consent.
4. Doctor’s Notes and Communications: If a doctor’s notes indicate that risks were not discussed, or if they provided misleading information, it may strengthen the patient’s case.

What to Do If You Were Treated Without Proper Consent

Steps to Take After a Lack of Informed Consent Incident

If you believe your doctor did not properly inform you about a medical procedure, you should take the following steps:

1. Obtain a Copy of Your Medical Records: Review any signed consent forms and documentation related to your treatment.
2. Write Down Your Experience: Note what you remember about your discussions with your doctor before the procedure.
3. Talk to Witnesses: If family members or friends were present, ask them what they remember.
4. Consult a Medical Malpractice Attorney: A lawyer can review your case, gather evidence, and help determine if you have a valid malpractice claim.

Can You Sue for Lack of Informed Consent?

Yes. If you suffered harm because a doctor did not properly explain the risks of a procedure, you may be able to sue for medical malpractice.

Patients may be eligible to recover compensation for:

1. Medical expenses
2. Lost wages
3. Pain and suffering
4. Emotional distress
5. Future medical costs related to the injury

Common Defenses Doctors Use in Informed Consent Lawsuits

How Doctors May Defend Themselves

1. If a doctor is sued for lack of informed consent, they may argue:
2. The risk was not significant – Some risks are considered too minor to require disclosure.
3. The patient would have agreed anyway – If the treatment was necessary, the doctor may claim that the patient would have gone through with it even if informed.
4. It was an emergency – In life-threatening situations, doctors can sometimes perform procedures without full consent.
5. The patient signed a consent form – A signed form alone does not guarantee informed consent, but doctors often use it as a defense.

Frequently Asked Questions (FAQs) About Informed Consent in Pennsylvania Medical Malpractice Cases

What is informed consent in Pennsylvania medical malpractice cases?

Informed consent is a legal and ethical requirement that ensures patients understand the risks, benefits, and alternatives of a medical procedure before agreeing to undergo treatment. Pennsylvania law mandates that doctors fully inform patients about material risks and obtain their consent before performing certain medical procedures.

What happens if a doctor fails to obtain informed consent?

If a doctor fails to obtain informed consent and the patient suffers harm as a result of an undisclosed risk, the patient may have grounds to file a medical malpractice lawsuit. The law holds healthcare providers accountable when they do not properly inform patients about treatment risks, alternatives, or potential complications.

What types of medical procedures require informed consent in Pennsylvania?

Pennsylvania law specifically requires informed consent for surgeries, radiation therapy, chemotherapy, blood transfusions, experimental treatments, and organ transplants. However, all medical procedures that involve significant risks should include a process for obtaining informed consent.

Can I sue my doctor for lack of informed consent?

Yes, if you were not adequately informed about the risks of a medical procedure and suffered harm as a result, you may have the right to sue for medical malpractice. To succeed in a lawsuit, you must prove that the doctor failed to disclose a material risk, that you would have reconsidered the procedure had you been properly informed, and that you suffered injury or harm due to the undisclosed risk.

How do I prove that my doctor failed to obtain informed consent?

Proving lack of informed consent typically requires medical records, witness testimony, expert opinions, and other forms of evidence. If a consent form was missing, incomplete, or did not accurately explain the risks, this could strengthen a malpractice claim. Testimony from medical experts can also help establish whether a reasonable doctor in the same field would have disclosed the risk in question.

Contact Purchase, George & Murphey, P.C. Today

If you suspect that your doctor failed to obtain informed consent, speak to a Pennsylvania medical malpractice lawyer as soon as possible. An attorney can review your case, gather evidence, and help you seek the compensation you deserve.

Don’t wait—Pennsylvania has a two-year statute of limitations for medical malpractice claims. Schedule a free consultation today to discuss your legal options.