The plaintiff won the case on the grounds that “a reasonable person” would have expected to know of such complications before the procedure in order to make an informed decision about whether to undergo the laminectomy.
Few court cases have examined the legal consequences of not obtaining informed consent for a procedure that goes awry. Some cases are settled with plaintiffs before they make it to court. Other suits are not brought because the recovery of monetary damages on cases that hinge purely on informed consent is insufficient to warrant filing suit. However, we could find no specific precedent test cases regarding the list of procedures in our study. Even though major complications and death are rare complications of these medical procedures, such results are possible, especially in critically ill patients. If patients are not informed and a major complication of a procedure ensues, the violation of regulatory standards (vide supra) and the invocation of the reasonable person standard could, theoretically, leave practitioners open to punitive judgements.
Interestingly, many physicians who responded to our questionnaires appear to use the hospital admission blanket consent form to cover invasive medical procedures performed during the hospital stay. We suspect that permission to give transfusions in the perioperative period is part of some surgical consent forms and may account for the rate (36%) of separate consent obtained for transfusions reported by surgical intensivists. Insofar as a patient’s condition varies and is an important determinant of the risk of each procedure, blanket consent (to general treatments) at hospital admission may not adequately inform the patient about risks. We invited those using such a strategy to send us their blanket consent form, but no respondent sent a form. We suspect that the general (nonsurgical) hospital admission consent-to-treat form for most institutions is similar to ours. That form does not list specific procedures, risks, benefits, and alternatives that might be undertaken during hospitalization/critical illness. Such general blanket consent (used to cover invasive procedures) may not satisfy the criteria of informed consent as outlined in the Belmont report.