This is a conversation I have with many callers. It's the same claim each time.

“I suffered a significant complication following a procedure and the doctor never told me I could have this type of complication. In fact, he didn't tell me anything!”

Contained within that statement is some truth and some lack of understanding.

When the patient says “The doctor didn't tell me anything about the risks associated with the procedure,” that means that either the patient was not listening carefully or did not read the informed consent sheet given to the patient by the nurse or the doctor's assistant.

The patient is describing is what we know in law to be a “Lack of informed consent issue.”

What they are really saying is that the doctor was supposed to have informed them of all the risks, benefits and alternatives to any medical treatment being proposed. Since the patient did not have sufficient knowledge and information to make an educated decision, they went forward with a decision based on incomplete and possibly inaccurate information.

Had they known that the complication they suffered was a recognized risk of the procedure, they would have clearly opted never to have the procedure.

When a lawsuit for medical malpractice is started, a lack of informed consent claim will usually accompany a claim for medical malpractice and/or medical negligence. However, keep in mind that just as we need expert confirmation that (1) there was wrongdoing, (2) the wrongdoing caused injury and (3) injury significant or permanent, we must also get confirmation from the medical expert that what the patient is saying is correct, and only if the doctor did not give the patient full and detailed information about the risks, benefits and alternatives then are we permitted to bring a claim for lack of informed consent.

Likewise, if your case goes to trial and you have a lack of informed consent claim, we are required to bring in a medical expert to testify that if you had been informed of these risks, a reasonable person in the same situation as you would not have proceeded forward with this particular treatment.

If you fail to bring in a medical expert to support your claim, the defense will make a request to the judge to throw out this claim at the end of your case. In New York, the law requires that we have a medical expert to support this particular claim, otherwise it will be thrown out.

In these cases, when a doctor is questioned at his deposition, which is a question-and-answer session given under oath, I always ask him what are the risks associated with a procedure. The doctor will then give me an entire list of the risks for that procedure.

I will then ask him what the benefits are to this procedure.

After that, I will ask him what the alternatives are to this procedure.

Then I will have him tell me what his procedure is for discussing these risks, benefits and alternatives with the patient. Who has this conversation? Who has the patient sign the form for informed consent? When is it signed? How much time is allocated to this discussion? What notes did you write about this discussion and any questions the patient asked?

In my experience handling medical malpractice cases for almost 25 years, I will tell you that I've never had a doctor admit that he did not give the patient all the details necessary for him to make an informed and educated decision about what treatment to participate in next.

Many doctors will argue with me about what is considered sufficient and detailed information to tell patients about the risks of a particular procedure. They will always claim that there are standard risks with any surgical procedure. However, there are many times when they will not give the patient specific detailed information so that they do not scare the patient off from having a recommended surgical procedure.

Also, they focus on the most likely risks and not necessarily the ones that can be severe and serious because those can be rare and not often seen.

As always, this he said/she said scenario does not bode well for the injured victim. When faced with a decision about who the jury believes, the deck tends to stack in favor of the doctor in many cases.

That is why if that is the only viable claim you have, many experienced medical malpractice trial attorneys will shy away from bringing such a case. You also need a claim of medical malpractice showing that there was wrongdoing and that the wrongdoing caused injury and that your injuries are significant and/or permanent. When we have that claim together with a valid lack of informed consent claim, the case becomes that much stronger.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer