Consider leaving informed consent claims in your case to bolster your defense

The Pennsylvania Supreme Court ruled that, generally, a patient’s informed consent to the risks of treatment is irrelevant in a case sounding in only medical negligence. The Supreme Court, however, refused to adopt the Superior Court’s bright line ruling that all aspects of informed consent information are always irrelevant in a medical malpractice case. Accordingly, the court found that there are still some cases where informed consent may be relevant, such as when the standard of care requires that doctors discuss certain risks with the patients.

Based on this opinion, doctors should take special care to carefully document exactly what was explained to patients before a procedure. Similarly, special care should be taken to document exactly what treatments were rendered and why. Carefully documented records can help limit the theories of liability against a professional and, if admissible, can be used to bolster the defense. Also, for complaints containing an informed consent claim, special consideration should be given to whether it is prudent to attempt to dismiss a claim at a preliminary stage. If the informed consent claim is left in, and the written informed consent form is well documented, it can be used as persuasive evidence that certain known risks were present, regardless of any negligence, and were readily accepted by the patient.

_{Case Law Alerts, 3rd Quarter, July 2015}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}