How To Prove A California Failure to Obtain Informed Consent Claim

In California, a claim of Failure to Obtain Informed Consent is defined as:
Before performing any procedure or administering any treatment, a doctor is required to provide the patient a complete and thorough description of the treatment being offered, the risks and benefits of the proposed treatment, and all reasonable alternatives to the proposed treatment. This concept is known as informed consent.
It simply means:
If a doctor treats a patient without obtaining the patient’s informed consent to the treatment and the patient is injured, the patient may have a malpractice claim against the doctor.
There are 4 elements of the claim:
- Element 1. The defendant performed a medical procedure on the plaintiff. The defendant carried out a medical procedure on the plaintiff, which is a key part of proving that the plaintiff did not give informed consent, meaning they weren’t fully aware of the risks and details involved before agreeing to the treatment.
Facts that might support this element look like:
* The defendant, a licensed physician, conducted a surgical procedure on the plaintiff’s knee.
* The plaintiff was present in the operating room during the procedure performed by the defendant.
* The defendant utilized medical instruments and anesthesia to carry out the procedure on the plaintiff.
* The plaintiff signed a consent form that specifically referenced the procedure performed by the defendant.
* The defendant verbally explained the procedure to the plaintiff prior to its execution. - Element 2. The defendant did not disclose to the plaintiff the important potential results and risks of the procedure. The defendant failed to inform the plaintiff about the significant risks and possible outcomes of the medical procedure, which is a key part of proving that the plaintiff did not give informed consent before undergoing the treatment.
Facts that might support this element look like:
* The defendant failed to inform the plaintiff about the possibility of severe complications associated with the procedure, including infection and prolonged recovery time.
* The defendant did not provide the plaintiff with written materials outlining the risks and benefits of the procedure prior to obtaining consent.
* The defendant did not discuss alternative treatment options with the plaintiff, limiting their understanding of potential outcomes.
* The defendant assured the plaintiff that the procedure was completely safe, downplaying any associated risks.
* The defendant did not allow sufficient time for the plaintiff to ask questions or express concerns about the procedure before obtaining consent. - Element 3. A reasonable person in plaintiff’s position would have no agreed to the procedure if that person had been adequately informed. A reasonable person in the plaintiff’s situation would not have consented to the medical procedure if they had been properly informed about the risks, benefits, and alternatives, meaning they didn’t have all the necessary information to make a smart decision about their care.
Facts that might support this element look like:
* The plaintiff was not provided with information about the potential risks and complications associated with the procedure prior to giving consent.
* The medical professional failed to disclose alternative treatment options that could have been less invasive or risky.
* The plaintiff was not given sufficient time to ask questions or consider the information provided before consenting to the procedure.
* The consent form presented to the plaintiff was overly complex and did not clearly explain the procedure or its implications.
* The plaintiff expressed specific concerns about the procedure, which were not adequately addressed by the medical professional. - Element 4. The plaintiff was harmed as a result of a risk that the defendant should have explained. The plaintiff suffered harm because the defendant failed to clearly explain the risks involved in a medical procedure, which the plaintiff needed to understand before agreeing to it.
Facts that might support this element look like:
* The defendant failed to inform the plaintiff about the potential side effects of the treatment, which included severe complications.
* The plaintiff was unaware of alternative treatment options that could have been less risky, leading to an uninformed decision.
* The defendant did not provide adequate information about the likelihood of success for the proposed procedure, impacting the plaintiff’s choice.
* The plaintiff experienced significant physical and emotional distress due to the unexpected outcomes of the treatment that were not disclosed.
* The defendant’s lack of communication regarding the risks resulted in the plaintiff undergoing a procedure that they might have otherwise declined.
(See California Civil Jury Instructions (CACI), No. 533. Failure to Obtain Informed Consent – Essential Factual Elements.)
If you’re in court without a lawyer and plan to assert a Claim of Failure to Obtain Informed Consent, it’s essential to engage in a Personal Practice of Law at Courtroom5. You’ll need to make critical decisions about what to file at each phase of your case and prepare legal documents supported by thorough legal research and a strong analysis of the facts. This proactive approach will help you effectively navigate the complexities of your claim.
Prove Your CA Failure to Obtain Informed Consent Claim
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