Informed Consent For Medical Procedures

Illinois law requires that physicians acting in nonemergency situations first must obtain their patients' "informed consent" prior to performing surgical or operative procedures. The doctrine of informed consent requires that a physician disclose to each patient the material facts, risks, complications, and alternatives to surgery that a reasonable, prudent person would consider significant in deciding whether to undergo the surgery. Where incisions, excisions, or sutures are made and surgical instruments are used, the procedure qualifies as one for which the physician must obtain the patient's informed consent.

The doctrine of informed consent arises from the notion that a patient and a physician are entering into a contract. For the contract to be valid, both parties must understand and agree upon the nature of the procedure and both the expected and the possibly unexpected results. The physician need not disclose all information that he or she knows, but must generally advise the patient of the facts, risks, complications, and alternatives to surgery.

Where an operative procedure is conducted without the patient's informed consent, the patient may have a legal claim for both medical negligence and "battery," which can generally be defined as an unwanted touching. Unlike most medical malpractice cases, in battery claims the patient need not prove that the doctor was negligent. The patient must only prove that the doctor conducted a procedure without the patient's informed consent. The amount of damages suffered by the patient is determined by the jury and must be supported by some evidence produced by the patient.

Illinois courts have decided several cases that explore the limits of informed consent. In one case, the court held that a surgeon had a duty to disclose his HIV-positive status to a patient before he operated on her. However, the patient was unable to completely pursue her claim because she did not become infected with the HIV virus and, therefore, did not have an injury arising from the surgeon's conduct. In another case, an Illinois court ruled that a battery had been committed when a male nurse viewed and touched the naked body of a female patient, violating her religious beliefs. Because the medical personnel were aware of her beliefs, the court found that the nurse and the hospital could be liable for knowingly interfering with a person's right to refuse or accept medical care.

Doctors need not provide the details of their education and experience to all of their surgical patients. However, they must give accurate and truthful answers to those patients who inquire. They need not guarantee the reliability of devices that they implant, but they must share information about the limits of FDA approval and any known risks. The entitlement to this information is something that patients should value and take seriously. When signing an informed consent form, patients should take time to read the form and, if necessary, ask for more information.

This website is not intended to constitute legal advice or the provision of legal services. By posting and/or maintaining the website and its contents, Lucas Law does not intend to solicit business from clients located in states or jurisdictions outside of Illinois wherein Lucas Law or its individual attorney(s) are not licensed or authorized to practice law.