In Washington State, a lack of informed consent claim arises when a healthcare provider fails to inform a patient about the material risks, benefits, and alternatives of a proposed treatment, and the patient suffers harm as a result. This claim is based on the principle that patients have the right to make informed decisions about their own healthcare.
To establish a lack of informed consent, the following elements must be proven:
- The healthcare provider did not disclose material facts that a reasonably prudent patient would need to make an informed decision.
- The patient would not have consented to the treatment if they had been properly informed.
- The lack of informed consent caused harm to the patient.
This doctrine is rooted in the idea that a competent patient has the right to determine what should or should not be done with their body.
- Injured or killed patients may recover damages if not adequately informed about treatment risks, even if the treatment itself was not performed negligently.
- Informed consent emphasizes patient sovereignty, ensuring patients have enough information to make intelligent decisions about their health care.
- Key cases:
- ZeBarth v. Swedish Hospital Medical Center (1972): The Washington Supreme Court first recognized the doctrine of informed consent.
- Miller v. Kennedy (1974): Refined the doctrine of informed consent, emphasizing the need for physicians to disclose material facts to patients.
- Keogan v. Holy Family Hospital (1980): Addressed the distinction between medical battery and informed consent.
- Bundrick v. Stewart (2005): Reiterated the principles of informed consent and the necessity of disclosing risks.
Statutory Elements and Exceptions (RCW 7.70.050):
- Elements of proof include failure to inform, lack of awareness, prudent patient standard, and causation of injury.
- Material facts requiring expert testimony include treatment nature, anticipated results, alternative treatments, and risks.
- Emergency exceptions allow implied consent if the patient is incapacitated and no authorized person is available.
Written Consent (RCW 7.70.060):
- Written consent forms and acknowledgments of shared decision-making are prima facie evidence of consent, with different burdens of proof for rebuttal.
- Lack of written consent is not evidence of informed consent violation.
Jury Instructions:
- Typical jury instructions outline standards and burden of proof for informed consent claims but exclude emergency exceptions and written consent presumptions.
Limitations on Lack of Informed Consent Claims:
- Hospitals are generally not directly liable for informed consent but may be vicariously liable for physician employees.
- The duty of informed consent is owed only to the patient or their representative.
- Informed consent does not apply in misdiagnosis cases, where negligence is the appropriate claim.
- Key cases:
- Smith v. Shannon (1983): Affirmed judgment for the defendant provider, highlighting that small probabilities of risk do not necessitate disclosure.
- Backlund v. University of Washington (1999): Dismissed an informed consent claim due to insufficient proof that a reasonably prudent patient would have opted for an alternative treatment.
- Stewart-Graves v. Vaughn (2007): Discussed the emergency exception to informed consent.
Standards and Sufficiency of Proof:
- Expert testimony is required for material facts but not for the standard of care.
- Materiality is judged objectively, not subjectively, and patient testimony is not required.
- Physician's inexperience is generally not a material fact unless properly substantiated.
- Key cases:
- Ruffer v. St. Frances Cabrini Hospital of Seattle (1990): Affirmed summary judgment for the defendant due to lack of expert testimony on the significance of risk.
- Mason v. Ellsworth (1970): Held that the risk of esophagus perforation was not foreseeable, affirming judgment for the defendant.
Additional Cases with a Lack of Informed Consent Claim:
- Brown v. Dahl (1985): Reversed summary dismissal, allowing the informed consent claim to go to jury based on expert testimony about anesthesia risks.
- Seybold v. Neu (2001): Reversed summary dismissal, supporting the claim that the patient was not informed of material facts.
- Estate of Lapping v. Group Health Co-op. of Puget Sound (1995): Reversed directed verdict, allowing the claim to proceed based on expert testimony about alternative treatments.
- Villanueva v. Harrington (1995): Reversed summary judgment, supporting the claim that the patient was not informed of common complications of forceps delivery.
- Coggle v. Snow (1990): Reversed summary judgment, supporting the claim that the patient was not informed of risks associated with a pain cocktail.
- Adams v. Richland Clinic, Inc., P.S. (1984): Reversed directed verdict, supporting the claim that the patient was misled about the need to diet after gastric bypass surgery.
- Archer v. Galbraith (1977): Reversed directed verdict, supporting the claim that the patient was not informed of alternative treatment options.
