Surgery without informed consent

The Illinois Medical Patient Rights Act establishes each patient’s right to receive information concerning his or her condition and proposed treatment, and to refuse any treatment to the extent permitted by law (opens in a new tab). The rules for a lawsuit over consent come from the courts.

Illinois law separates two kinds of consent claim. Of surgery with no consent, the Committee’s notes on the pattern jury instructions say: “Any operation performed without consent in a non-emergency situation constitutes a battery.” (opens in a new tab) Of consent given on too little information its comment says: “Informed consent is a negligence concept.” (opens in a new tab)

The instructions and the notes on them are drafted by the Illinois Supreme Court Committee on Jury Instructions in Civil Cases (opens in a new tab). They are the Committee’s statement of the law, and they are not court holdings.

Illinois hospital licensing rules require a properly executed consent for the proposed procedure, including a consent for anesthesia services, to be in the patient’s chart before surgery (opens in a new tab). The federal rule for hospitals that take Medicare says a properly executed informed consent form for the operation must be in the chart before surgery, except in emergencies (opens in a new tab). Neither says what the surgeon must have explained.

The American College of Surgeons’ principles say the discussion should include the nature of the illness and the natural consequences of no treatment, the proposed operation and its estimated risks, the more commonly known complications, alternative forms of treatment, and the types of providers who will take part (opens in a new tab).

These are the documents of regulators and of a professional society. Neither is the legal test in a lawsuit, and what careful practice required for a particular patient is for a qualified surgeon to explain.

No source used here counts how often it happens. The federal Agency for Healthcare Research and Quality says that many individuals do not understand the benefits, harms and risks of treatment, even after signing a consent form (opens in a new tab). A lawsuit over disclosure asks whether the patient was told what a reasonably well-qualified practitioner would disclose (opens in a new tab).

In 233 spinal surgery malpractice cases drawn from a national legal database, the most common consent allegations were failure to explain the risks and adverse effects of surgery, and failure to explain alternative treatments (opens in a new tab).

A caution applies to that study. It counts lawsuits that reached a legal database, and it says nothing about how often consent goes wrong for patients in general. Nor is a complication, by itself, an error.

Under the pattern instructions, a battery claim asks whether the consent of the patient for the procedure performed was obtained (opens in a new tab).

A claim that consent rested on too little information asks more. The Illinois Supreme Court has recited four things a patient must prove: that the physician had a duty to disclose material risks, that he failed to disclose them or did so inadequately, that as a direct result the patient consented to treatment she would not otherwise have consented to, and that the treatment injured her (opens in a new tab).

The same opinion shows what such a claim is not. The court found none in a complaint about a failure to warn of the risks of leaving the hospital, because the person suing had never alleged or shown that the patient consented to medical treatment without being adequately informed and that the treatment injured her (opens in a new tab).

Disclosure is measured by the profession. The Committee’s pattern instructions, which rest here on Appellate Court decisions, point jurors to the risks and alternatives which a reasonably well-qualified practitioner would disclose under the same or similar circumstances (opens in a new tab). Jurors may decide that only from expert testimony (opens in a new tab), unless the judge finds it a matter of common knowledge.

The test of what the patient would have done is usually objective. Under the same instructions the patient must prove that, had the disclosure been made, a reasonable person in the patient’s position would not have gone ahead with the procedure (opens in a new tab). The Committee notes one Appellate Court decision that used a subjective test for cosmetic surgery (opens in a new tab). The deadlines and the other rules for an Illinois malpractice claim are on our page about Illinois malpractice law.

Federal guidance for hospitals that take Medicare lists a consent form’s minimum elements. They include the specific procedure, the responsible practitioner and a statement that the procedure, with its anticipated benefits, material risks and alternative therapies, was explained (opens in a new tab).

The discussion may be recorded apart from the form, and the surgeon’s own office may hold notes of it. The American Medical Association’s ethics code says physicians should document the informed consent conversation and the patient’s decision in the medical record in some manner (opens in a new tab).

Illinois hospital rules require an operative report describing techniques and findings, written or dictated immediately following surgery (opens in a new tab). It is the surgeon’s own account of what was done, which can be set beside what the patient agreed to.

You can ask the hospital for these records, and our Illinois law page explains how. It helps to write down the dates, who explained the operation, and what you were told.