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Understanding "informed consent" in California

Most residents of Southern California understand that a doctor cannot perform an operation on a patient or provide treatment without first obtaining the patient's consent. However, the form and circumstances of the consent are almost as important as the patient's agreement to go forward. The ways in which consent must be obtained have been carefully spelled out by California courts in a number of medical malpractice decisions involving accusations that the physician failed to obtain the patient's knowing and deliberate consent.

The rule for obtaining the patient's consent may be simply stated: the physician or other responsible care giver must provide enough information to the patient to ensure that the patient is fully informed about the nature and risks of the procedure before giving consent. In other words, the consent must be informed by all material and relevant information. This information cannot be imparted in a casual conversation. The doctor must take steps to ensure that all risks that a reasonable person would consider important have been explained to the patient. Moreover, the explanation must be provided in lay terms that non-physicians can be expected to understand.

"Material information" comprises all information known to the doctor about the patient's medical condition and information that the doctor knows or should know that would be considered significant or relevant by the patient. Any risk of death or serious injury must be explained, including potential risks of choosing to refuse the procedure. The physician must also consider the patient's level of knowledge about the procedure being considered. If the physician perceives (or should have perceived) that the patient has a limited understand of medical terms and procedures, the physician must expand the scope of the discussion of risk and benefits.

Anyone who has suffered an injury or lost a loved one because of a suspected error by the treating physician may wish to review the case with an experienced medical malpractice attorney. Such a review can evaluate issues such as informed consent and the likelihood of recovering damages.

Source: California Civil Jury Instructions "No. 532 - Informed Consent - Definition," accessed on July 1, 2017

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