We often hear doctors say that a piece of paper called “informed consent” was signed, therefore the patient assumed the risk of a complication occurring and the doctor can’t be held responsible when things go wrong. In Ohio and elsewhere, the reference to “known and accepted complications” is a hotly debated topic in the law. The first thing you hear about when a medical procedure is planned is that you have to sign this piece of paper and consent to the surgery. Keep in mind that no matter what you sign, you are not consenting to the doctor to be negligent!
Rarely does the doctor or his nurse take the time to explain the frequency in which an infection, paralysis, perforation of an organ, worsening of the condition, heart attack, death or any number of risks of the procedure actually happen. That piece of paper that you are asked to sign is rarely read by the average patient and seldom explained by the doctor.
Fast-forward to the end of the procedure and when one of the listed complications occur, most doctors will explain to the patient (or in deposition as a defense to a lawsuit) that the complication that occurred was a “known, recognized and accepted complication.” Doctors and their skilled defense attorneys will attempt to defeat a valid claim of medical negligence by arguing that the bad outcome was a statistical possibility. It is unfortunate but this kind of problem happens 1% of the time and Mr. or Mrs. Patient you were the unlucky one.
The medical literature will reference that a procedure has a known or accepted or recognized complication rate. However, rarely will the literature explain that many of the complications that are reported in the literature were actually preventable and were due to medical errors. Instead, the complication written about in the literature will be used as a shield to any legal responsibility for the bad outcome. The attorney representing the doctor will waive the informed consent form in front of the patient and boldly say “is this your signature and did you sign this document that lists X,Y & Z as a risk of the procedure before the doctor operated on you?”
Many patients and an unreasonably large number of doctors and defense attorneys think that with this piece of paper there is no claim for medical negligence. Game over – patient loses. Not so. Simply because a known and recognized complication occurs and was listed in the informed consent form, does not constitute a basis to absolve a doctor of negligence. If shown through expert testimony that the complication that occurred was preventable and avoidable there is a valid claim. Put another way, simply because nerve damage is listed in the consent form does not mean that anytime a nerve injury occurs, even if the doctor failed to identify the nerve and protect it, that the doctor gets a free pass.
In Ohio the law on informed consent is addressed in Nickell v. Gonzalez 17 Ohio St. 3rd. However the fact that a consent form has been signed does not excuse a doctor when the risk was due to negligence. See Waller v. Aggarwal 116 Ohio App. 3d. 355.
Unless the patient is arguing that the risk that materialized was not explained to the patient and that the patient would not have had the procedure done if he knew of the risk, informed consent is irrelevant. It is not a defense to medical negligence unless the patient is pursuing an informed consent claim.
Most experienced Ohio Medical Malpractice attorneys know the difference between an informed consent case and a medical negligence claim and when to sue for one or the other or both. Bottom line, simply because the doctor explains that the risk of paralysis is 2% and the patient experiences paralaysis is not an absolute defense.
If the risk of permanent heart damage during a cardiac surgery is known to occur and is called a recognized complication, the issue that has to be investigated is why the injury occurred in that particular surgery. Did the surgeon cut corners? Did he fail to take precautions to avoid the injury that he knew could occur? Why didn’t he take steps to avoid the injury? Was it due to a failure on the part of the surgeon to comply with the standard of care of did he do everything within his power to avoid the complication? If the surgeon made a mistake and caused the injury he can’t hide behind the defense of known and recognized complication and expect to be cleared of responsibility. If the risk is known and recognized and reasonable steps were not taken to avoid the injury then that is medical negligence and an informed consent form signed by the patient will not be a defense to the resulting injury.