Informed consent is a concept that varies from state to state, and is often governed by a specific statute. The idea is that a doctor is not supposed to perform a risky medical procedure without first explaining the important risks of the procedure to the patient, and then having the patient’s consent to do it. Usually, if a patient is unconscious and the procedure is an emergency, consent is implied by operation of law.
In Florida, the informed consent law requires that the patient be advised of three things: 1) The nature of the procedure; 2) the substantial risks and hazards of the procedure; and 3) the reasonable alternatives to the procedure (including, when appropriate, the option of doing nothing). After learning of these things, if a patient consents to the procedure, then informed consent has taken place.
Some people erroneously think that if a patient signs a written consent form, that means informed consent has been given. But a signed consent form by itself is not conclusive; it is just another piece of evidence that informed consent might have been given. It is still quite possible that the consent form itself doesn’t contain all the important information it should, or was signed without explanation when the patient was already heavily medicated. Many doctors have a practice of just giving an order for a nurse to have the consent form signed, and they think that is obtaining informed consent. It is not. Informed consent only takes place if and when the required information is given to the patient, and the patient then consents. It can be oral or written, but it must be complete.
Florida’s informed consent law has a second part to it that applies when a patient sues a doctor for failure to obtain informed consent. The law provides that even if a jury concludes that the doctor did not give the patient the information he should have, the jury should still decide the case in favor of the doctor if the jury believes that the patient probably would have consented anyway if the patient had been given the information. This can make winning a pure informed consent case a tough proposition. (see 766.103, F.S.)