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Medical Malpractice

Disclosure of Material Risks For Informed Consent Before Surgery

April 17, 2017

Prior to surgery, patients must be told about the material risks of the procedure in order to give their informed consent. If their doctors fail to inform them and they are injured, they may be able to hold the doctors liable for damages through medical malpractice lawsuits. In order to prevail on their cases, injured plaintiffs must prove that their doctors failed to inform them of the material risks involved with the surgery and that they suffered harm. In order to determine what the material risks are in surgery, Illinois applies the reasonable physician standard. A minority of states instead follow the reasonable patient standard. Medical malpractice lawyers might assess cases to determine whether or not the patients were adequately informed of the material risks of their surgeries before they consented to treatment.

Material Risks

While Illinois does not have any published opinions addressing whether or not a physician’s level of experience is a material risk requiring disclosure, the state’s approach to informed consent indicates that doctors are not required to disclose their inexperience to patients who are preparing to undergo surgery. Instead, material risks are those things that are associated with the surgery itself, including the potential complications of the procedure. These may include the potential complications from anesthesia, blood loss, and infections.

Reasonable Physician Standard

In order to determine whether or not a patient was adequately informed about the material risks of a surgical procedure, the courts apply the reasonable physician standard. Under this, the courts look at what a similarly situated doctor in the same area would reasonably disclose to a patient. This means that what is important is what similar doctors in similar situations normally disclose to patients. This differs from the reasonable patient standard. Under that standard, courts look at what information a similarly situated patient would expect to be disclosed in order to make an informed decision about whether or not to proceed with a surgery. This approach is not followed in Illinois, however.

Patients who are not adequately informed of the material risks associated with their procedures may have valid grounds to file medical malpractice lawsuits against their doctors. In order to determine whether or not the consent that was provided was reasonable, the injured patients may need to have medical experts review the consent that was provided. Medical malpractice lawyers often work with experts to help make these types of determinations about the physician’s duty of care.

If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.