Lack of Informed Consent in New York Medical Malpractice Cases


A person determines what happens to his or her body.  This concept is true in medicine under the notion of informed consent.  Patients need to provide informed consent to any procedure prior to it being performed on him or her.  There are few exceptions to this rule, such as emergencies.

The case that laid the foundation for informed consent laws across the country, including New York medical malpractice cases, was a Minnesota case in 1905 called Mohr v. Williams.  In this case, the plaintiff sought out an ear specialist, the defendant, because she was having problems with both of her ears, but particularly the right ear.  The defendant agreed with the patient about the right ear and said that in order to correct the impairment surgery would be necessary.  The plaintiff decided to undergo the surgery.  Once under general anesthesia, the defendant noticed that her left ear was worse and decided to perform the operation on the left ear rather than the right ear the patient consented to.

The patient was upset once she learned that the doctor performed the operation on her left ear without obtaining her permission.  The plaintiff brought an action for civil battery (“intentional and direct, physical contact against another without that person’s consent or authority of law to do so”) against the doctor.  A civil battery is a type of personal injury.

The trial court found for the plaintiff.  While the defendant had consent to perform an operation, he only had consent to perform the operation on a specific part of the patient’s body (the right ear).  This made the consent specific, not general.  Therefore the defendant could not perform any operation he wanted to, only the operation the patient wanted and consented to.  The reasoning of the court was that the doctor was acting on the patient’s behalf and needed to follow her instructions as to what was to be done to her body.  Additionally, since the surgery the doctor decided to perform on the left ear was not performed in order to prevent serious or life-threatening harm to the life of the patient, it did not fall under the emergency doctrine.  Therefore the doctor did not have the authority to perform the operation on the left ear of the patient.

In medical malpractice actions, New York courts have followed the same reasoning and applied this rule.  Under New York Public Health Law Section 2805-d, informed consent is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonable foreseeable risks and benefits involved as a reasonable, medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”  When trying to show that there was a lack of informed consent, it is necessary to show that “a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition . . . .”

Whether informed consent was given is not always obvious and it needs to be investigated.  If you or a loved one believes that your rights have been violated because a health care provider did not inform you of the procedure properly, contact a Hudson medical malpractice attorney as soon as possible.

Contact one of our experienced Hudson medical malpractice attorneys who are knowledgeable in this area of law to determine whether you may have an informed consent issue with the care and treatment you received.  The attorneys at Greenberg and Greenberg handle cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.