In the medical community, the term informed consent refers to a patient’s right to ask questions, get factual information and make a well-researched decision about his or her treatment. Physicians must get informed consent before initiating medical care except in emergency situations in which the person cannot consent.

In Kentucky, failure to obtain informed consent constitutes medical malpractice.

Provider responsibility in informed consent

Before any nonemergent medical intervention, the physician must obtain informed consent from either a patient or his or her surrogate, such as a family member or another individual who has medical power of attorney. The doctor must:

  • Make an independent decision about the patient’s ability to understand the treatment as well as his or her alternatives
  • Educate the patient by providing accurate, sensitive information about his or her diagnosis, the reason for the recommended treatment and the risks and benefits of this treatment and alternatives (including no treatment)
  • Document informed consent in the medical record

Informed consent and malpractice

Patients can sue for medical malpractice in Kentucky if the doctor did not give informed consent for a procedure. For example, a person may state that the doctor did not disclose the risks, and that had disclosure occurred, he or she would have made a different choice about treatment.

Medical malpractice may also occur when a doctor changes the surgery or treatment after consent. Although this does not apply to cases involving mental health or trauma care, the doctor must seek third-party consent where possible.

Seeking a malpractice settlement

If you suffered complications of a medical procedure and did not give informed consent, you have one year to file a medical malpractice claim. You can seek financial damages including payment for associated medical costs, lost current and future wages, pain and suffering and other economic and noneconomic costs.

You may want to talk to an attorney if you think you have fallen victim to medical malpractice. You should also carefully document all subsequent medical treatments you receive and the cost.