Posted: April 27, 2021
"Consent Forms" and Patient's Rights
Those of you who have been to a hospital lately have most likely signed a “consent” form, although you probably did not read it closely and it was presented to you with a bunch of other papers to sign by some clerk or possibly a nurse who was in a hurry.
This is a form in small print, often on two sides of a sheet of paper, which details what the doctors are going to do to you and gives your agreement to have it done. It does more than that, however: it also lists the bad things that can happen to you as a result of the treatment and states your agreement that they have been “fully explained to you” and that “in spite of the risks” you want to have the treatment. Often the same form will advise you that doctors treating you at the hospital are “independent contractors” and no matter what they do to you, the hospital isn’t responsible.
The list of things that can go wrong is a long one on these forms: for even the most minor surgery it includes infection, brain damage and death. Reading one of these forms closely will give even the bravest person something to worry about as he is being wheeled into the operating room.
These forms exist because of the legal requirement that our doctors tell us the risks of a planned treatment so that we can weigh those risks against the benefits of the treatment intelligently. Since doctors obviously know much more about what the risks are of any given treatment than we do, we have to rely on them to give us enough information to make a rational choice. If we are going in to have surgery to take out a cancer, for example, we will be much more likely to accept a risk which we would not accept if we were going in to have some fat vacuumed out by a plastic surgeon.
What's In The Fine Print?
In order to ensure that our doctors don’t oversell a particular procedure and leave out the bad facts, the law requires that they tell us enough so that we can give our “informed consent”. The next question, obviously, is how much information is enough? If there is only one chance in 5 million of something bad happening, does your doctor need to tell you about it? How about if there is one chance in 500, or one in 50? And what about the type of risk—obviously you are entitled to know about the risk of dying, but what about the risk you will have diarrhea for a week after the surgery?
For obvious reasons, doctors are less than trusting that a jury of lay people confronted with a seriously injured plaintiff will find that the risk that injured the plaintiff was something the doctor shouldn’t have told them about—even if the risk was only one in a million. For the plaintiff in any particular lawsuit, after all, the risk turned out to be 100% and ruined his life.
And that’s why, the next time you go to the hospital, you will be asked to sign that form with all the small print and the long list of hair-raising possibilities. Doctors have decided, and wisely so, to err on the side of listing everything, rather than leaving something off and getting sued because they didn’t tell you about it.
Consent to Have Surgery is Not Permission for Your Doctor to be Negligent
It is important to recognize, however, that a consent form only protects a doctor from being sued because he hasn’t told you about risks of your surgery. Consent forms do not give doctors permission to hurt you through negligence in actually performing a procedure. Knowing that you may suffer nerve damage during an operation is an entirely different thing than agreeing that it is “OK” for the doctor to hurt you because he was negligent. A consent form is not a waiver, and it is not a permission slip.