John was having significant belly pain. He was doubled over. He couldn't go to the bathroom, thinking it was gas.
His pain was getting worse. Still he thought it was gas pain.
Finally, he decided it was wise to go to the emergency room. He was going to drive himself but realized that would be impossible.
An ambulance was called.
Twenty minutes later, he's being examined by a doctor who tells him he needs surgery. The doctor leaves and is replaced by a nurse who thrusts five pieces of paper from a clipboard in front of John.
Remember, John is in pain. His eyes are closed mostly. He is praying for the pain to go away.
Now, he's being asked to sign some forms.
"You need to sign these forms if you're going to have surgery," the nurse tells him.
Without reading a word, he grabs a pen and miserably scribbles his name five different times. Looking back at his signature days from now, he will never recognize that this was his signature.
Surgery goes well, but John develops complications following surgery that lands him back in the hospital for another three weeks.
John picks up the phone to ask if he has a case of 'lack of informed consent'.
DOES HE HAVE A CASE?
First, we have to answer what is "Informed Consent."
It is when the patient is fully informed about the risks, benefits and alternatives to the procedure that is being recommended. Why is this important? It is critical for the patient to be informed about his options and the risks of proceeding compared to any alternatives that might be available.
What happens if you have not been given all the risks, benefits and alternatives and suffer injury during or after the surgery? Then, you would have made a decision to proceed without have the full information to make an educated decision about this particular surgery. If you don't have enough information to make an informed decision, then you're at a significant disadvantage and are making a decision without enough information.
WHAT'S THE PROBLEM WITH A LACK OF CONSENT CLAIM IN NEW YORK?
This type of claim often resorts to a "He said," "She said," situation.
Here's what I mean.
"I'm telling you, the doctor did not tell me there were any risks to have this surgery. I do not even remember signing the consent form, which was hurriedly done in the hospital and by a nurse, not the doctor."
The doctor, on the other hand, says "What are you talking about? Of course I discussed the risks, benefits and alternatives with her. In fact, I spent 25  minutes talking to her about her options, her husband was in the room with us and they asked lots of good questions before agreeing to the surgery."
WHO DOES THE JURY BELIEVE IN A 'HE SAID/SHE SAID' SCENARIO
You simply don't know. If that's the only basis for your claim, you've got a very tough road ahead of you. It all depends on who is more credible. In NY, two thirds of all medical negligence trials are won by doctors and hospitals. Juries tend to believe that the doctor gave the patient full informed consent. There are instances where this is not the case.
However, if this is the only claim you have, you may find that an experienced trial attorney will have difficulty accepting your case. Leaving a verdict up to six members of the community just on the basis of "The doctor didn't tell me that," and "Yes, I did tell her that," is extremely challenging.
HOW WILL THIS HELP YOU IN THE FUTURE?
The next time a surgical procedure is recommended, READ the forms or have someone on your behalf read them and ask questions about the risks, benefits and alternatives before signing.