Informed Consent & the Future of Med Mal Cases

stethoscope & judge gavel, medical malpractice graphic

Many med mal torts hinge on the issue of informed consent, focusing on the information physicians have provided regarding treatment options, potential risks, and alternatives when patients made health care decisions.

The complex ethical and legal obligations that come with informed consent are often challenging to establish in litigation, requiring experts to weigh in on specifics; for example, were the risks “reasonably foreseeable”, would a “reasonable practitioner” have disclosed alternatives, and would a “reasonably prudent patient” have refused treatment if more information had been available.

As labyrinthine as these matters can be in some cases, informed consent is poised to assume a bigger role in future medical malpractice litigation. A recent ruling in a New York malpractice case, along with proposed changes to the law, could have major implications on what it takes to prove or defend against informed consent claims while possibly opening the door for more of these cases in the future.

Case Law Shapes Informed Consent: Cox v Herzog

In Cox v Herzog (Case No. 2018-06117), informed consent was a central issue in the plaintiff’s claim against a gynecologist, who had performed an Essure sterilization procedure on the plaintiff in June 2009. Three days later, the plaintiff was hospitalized with chest pain and subsequently diagnosed with cardiac decompensation requiring quadruple coronary artery bypass surgery.

According to the complaint, the plaintiff alleged malpractice and lack of informed consent, arguing that the gynecologist deviated from standard practice when performing the procedure. The plaintiff also alleged that the gynecologist had failed to explain the risks and alternatives, and that the sum of this alleged negligence resulted in her injuries.

The defendant denied any wrongdoing and had experts testify during the trial that there were no departures from the standard of care in the Essure sterilization procedure.

Although the plaintiff presented experts that disagreed with the defense witnesses, the defense moved for a summary judgment to dismiss the complaint. The court denied the request, and the defendant appealed.

The Decision

On March 10, 2021, the Supreme Court of New York upheld the lower court’s order, denying the motion for summary judgment. In the ruling, the Court explained:

The defendants met their prima facie burden through the affidavit of Herzog, who opined with a reasonable degree of medical certainty that he did not depart from the applicable standard of care, that he fully discussed with the plaintiff the risks and alternatives to the Essure procedure, and that his treatment did not contribute to the plaintiff’s injuries… However, the plaintiffs’ submissions in opposition to the motion raised triable issues of fact precluding summary judgment. Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions.

With this decision, the Court underscored how medical experts in a malpractice case can impact the prima facie burden for informed consent claims. While the Court recognized the defense had met this burden, it was not sufficient to dismiss the allegations of negligence in light of the plaintiff’s experts who presented credible opinions. As the court explained:

That the experts disagree presents a credibility battle between the parties’ experts, and issues of credibility are properly left to a jury for its resolution.

This ruling could create more challenges for defendants in future malpractice torts, potentially making it more difficult to seek dismissals even when they have satisfied the prima facie burden. It also stands to make medical experts even more critical in informed consent cases when motions for summary judgments are on the line.

Proposed Changes to Informed Consent Law

New York public health law (Sec. 2805-D) establishes several terms and limits around informed consent, including limiting informed consent to:

(a) non-emergency treatment, procedure, or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

That may change if New York State Assembly Bill A4954 becomes law. Introduced on February 9, 2021, by Assembly Member Vitor M. Pichardo, A4954 seeks to require “informed consent for any proposed procedure or treatment.” The bill is still a ways off from reaching the Assembly floor for a vote, and it could undergo various amendments even if it is passed into law. Nevertheless, A4954 is poised to substantially expand the situations in which providers would need to obtain informed consent from patients.

If it does, there could be a new flood of medical malpractice claims related to lack of informed consent in New York courts.

Only time will tell how the issues, rulings, and proposed changes to the law related to informed consent will shake out. At this point, the only thing that is certain is that informed consent is evolving and that stands to have major impact on the future of medical malpractice torts

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2 Responses

  1. The way to address this chronic problem is for the plaintiff’s expert to state at the very least the defendant physician should have told the patient about an alternative treatment. The choice belongs to the patient not to the doctor. The failure to provide the patient with the choice is a recurrent issue with “informed consent” since it is not informed if the patient is never told of any alternative choice.

  2. I have been defending doctors for 36 years. I am shocked to hear that there is a bill to limit emergency procedures. This could only harm the patient. Doctors try to get informed consent when they can. I was passed a consent form on my way to an emergency CS.
    Further we all know that any question of fact in a motion for summary judgment will cause it to fail. This is nothing new. We win these motions when the plaintiff’s do not challenge that they knew, for example that the surgery was meant to rule out cancer. I would love to know what benefit Bill 4954 proposes to afford to the public.

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