By Dr. JD, a plaintiff’s attorney, practicing in the Northeast
Consenting a patient is really the entering into of a contractual agreement that will govern the medical care that you will engage in and, as in all contracts, that process requires a meeting of the minds to be valid.
The document called a “consent” is, like a written contract, merely a legal formality that memorializes the end result of that process.
The only role it really plays in a medical malpractice action is when it is not there at all or looks so deficient on its face that it raises serious questions about the propriety of the care ( e.g.; the physician is not named, suggesting that there may have been “ghost surgery”, or the patient’s signature is a scrawl that suggests that they may not have been competent when they signed, or the document itself is post-dated, suggesting that it was only filled-in after the fact).
In fact, since a malpractice claim in which a patient is alleging “lack of informed consent” is actually the patient saying “I did not know something critical to my decision about my care because you did not tell me, and I would not have made the choice about my care that led to my present problem if you had told me what I needed to know”, a signed piece of legal boilerplate is no bar at all to that claim proceeding. At most, it creates a rebuttable presumption that the patient agreed as an informed person, but that simply moves the case forward to the presentation of evidence to provide that rebuttal.
