Generally speaking, physicians are only legally responsible for adverse effects caused by negligent acts. To be held liable for negligence, a physician must have breached a duty of care owed to the patient by providing substandard care (care that falls below recognized and respectable practice of the profession or a reasonable level of knowledge, competence and skill expected of medical professionals), which then results in the adverse effects or damages. Negligence law functions both as a way of protecting physicians from liability (persons alleging negligence would have to prove that the injury was in fact caused by the physicians negligence) and of imposing liability on physicians who provide substandard care which causes harm to patients.

I must disagree with the Oleg's premise and Ubaka's reply. Consent forms do function as a contract between doctor and patient and although used by plaintiff's to establish liability, most often they are successfully used by physicians as a defense.

A physician's negligence is not the only theory of recovery brought by patients. In addition to negligence, most complaints will include breach of contract and assault and battery. The damages allowable under each theory differs.

Many defenses are available to the physician and are regularly pleaded in the Answer. The problem Oleg is talking about is that the law does not permit the doctor, in this case, to defeat a negligence claim with contract. language. If properly drafted and inclusive, the consent form will defeat a contract theory.

A doctor is not a guarantor of results so a mere bad outcome does not create liability, whether the outcome results from a medical procedure or a problem with prescribed drugs. However, this assumes that the physician has exercised the duty of professional care which is taken on as part of the physician-patient relationship. Mr. Bruzzi is right: consent forms DO constitute contracts - they are evidence that the physician has explained the risks and benefits of a proposed procedure, and that the patient has acknowledged that the risks and benefits have been explained, so that the patient can't claim later that they "didn't know" that occurrence X was a risk of the procedure.

The framework that protects doctors and other practitioners from the perils Ms. Nekrassovski describes is the judicial system. Only a minority of medical malpractice cases go to trial, and of those that do, the physician wins the vast majority of the time (somewhere in excess of 60%). The idea that doctors and the medical profession generally lie helplessly at the feet of greedy lawyers and patients is a complete fabrication, one of the great lies of our generation that has been repeated so often that otherwise sane, rational folks are starting to believe it. Which may be fine until it's THEIR case that can't be heard, or for which they cannot receive due compensation from negligent providers. Of every $100 spent on health care in the United States, the cost of medical malpractice suits - including liability insurance for doctors and other clinicians - is less than 1/10 of one cent.

The real dilemma is where written or oral consent to treat is witheld by the patient or his representative in interest. This may be due to some primordial prejudices often based on beliefs. Yet in critical cases the doctors have to treat relying on the proffessional oath alone. Where anything goes wrong in the process, the doctor will surely be in a quargmire. In that case, the onus will rest squarely on the doctor to establish utmost good faith as well as due care and prudence. In Nigeria, no special legislation exists for such cases, so the default legal regime of the general and largely uncodified law of torts and written and implied terms of contract come to play with all their vagries and dependence on advocacy skills of legal practitioners.

The key is an "informed consent." A physician must know that informed consent is a series of communications between him and the patient. I think most physicians believe that a signed informed consent form is the real deal. No, it is not. The patient can sign the form a thousand times and yet still fail to satisfy the legal requirement of a valid informed consent. In cases of lack of informed consent the respondent physician must establish thru entries in the medical chart or other factual related evidence that indeed there were series of communications that took place about the material risks involve and alternative treatment among others. The doctrine of informed consent also applies when it comes to the use of drugs especially those classified as "prescription drugs." The doctrine of "learned intermediary" is equally applicable - the physician or doctor is the one "learned" when it comes to the adverse effects of drugs not the manufacturer.

From the legal viewpoint an informed consent is a part of the physician-patient contract. Ocasionally, such informed consent can be subject to a "breached of contract" action vis-a-vis breach of promise of a specific result. Take note that lack of informed consent is totally different from the traditional medical malpractice suit or tort. One may be liable for lack of informed consent but not for medical negligence. Informed consent is not a consent given to a physician to commit negligence in the first place.

What do you do in a poor developing country where the patient's relatives have a tendency to take the law into their own hands and lynch not only the doctors, but maybe vandalise the hospital if the patient dies, regardless of whether negligence was involved? It's no wonder that doctors are unwilling to work in places where there's little security against this sort of behaviour.

That's a reality. I know of a female doctor who was shot dead by an immediate family member at her clinic because of the unexpected demise of the patient. I admire medical doctors who set aside this fear and instead practice their craft anywhere without fear or any reservation. They dont seek out a congressional medal of honor for serving their countrymen. I had an experience were a relative took out a gun when I broke the news that the patient was already dead. I salute all doctors out there facing danger everyday just to treat their sick countrymen.

Rodel, that is a tragic story, and Marianne, your point is well taken. But 'informed consent' as understood in America is a very recent development, especially when it's analyzed in terms of patient autonomy. For most of the 20th Century, the information given to the patient as the basis for consent was what the doctor thought the patient should know - the so-called 'professional standard.' Only with the more recent emphasis on patient autonomy did the rule of 'prudent patient' enter the jurisprudence of medical malpractice informed consent cases - here, of course, the physician is obliged to divulge all of the information which a reasonably prudent patient would expect to want to know about a proposed procedure. Socities in which medicine is practiced along the lines described by Rodel and Marianne aren't just light-years behind Western attitudes - rather, they are cultures who simply have a different world view than we do, as witness the lack of value which the society in Rodel's story places on human life. It's unrealistic to expect that they will adopt or even comprehend Western ideas of health care ethics any time soon.

Thanks for your answers guys. My statement that consent forms don’t function like contracts was only meant to say that a signed consent form does not protect the doctor from being held liable for the adverse effects of the procedure that he/she performs; which is fundamentally different from something like: “I, the undersigned, will not hold the employees, agents, etc. of this fitness club, liable, for any injuries I may sustain from using the training equipment available at this club.” I was well aware that consent forms are evidence that informed consent has been given by the patient.

To Mr. Ohlsson:

Would you mind providing links to scholarly evidence which would support the bold statements from the second paragraph of your first comment?

To Dr. Ayuba Giwa:

Does Nigerian medical law recognize implied consent? If I am not mistaking, in Europe and North America, written or verbal consent is only required before procedures in which the patient becomes mentally incompetent (e.g. anesthetized).

Also, if the patient has been mentally incapacitated (e.g. from trauma) before the doctor sees them, the doctor need not obtain consent to be legally protected. I.e. legally, North American and European doctors need not obtain consent, in any form, from mentally incompetent/incapacitated patients before performing any procedures on them. What about Nigeria?

To Dr. Rodel Capule:

Isn’t a signed consent form considered an evidence of the fact that the doctor explained to the patient the risks involved in the procedure to the extent that the patient was able to understand and decided for himself/herself to go ahead with the procedure (i.e. informed consent)?

Regarding the issue of medical practice in dangerous locations:

If we take the net social benefit (of the whole world) as the goal of medical practice and apply cost-benefit analysis, then it becomes clear that the world will be better off if doctors avoid practicing in dangerous areas. By practicing in safe areas doctors will have long and productive careers during which they will help countless people; while if they practice in dangerous areas, they may only manage to help a very limited number of people before having their careers cut short by mindless violence.

In most jurisdiction a signed "informed consent form" enjoys a rebuttable presumption that the [adult] patient understood the contents and import of the statements therein. However, a patient's signature does not automatically mean that he [patient] was truly informed to give his consent. A signed 'informed consent form" does not bar the presentation of "parole evidence" - a patient can present other evidence [to rebut the terms and conditions of the consent form] that he was not validly informed to give his consent, i.e., physician said otherwise about a particular risk, patient was simply asked to sign few minutes prior to the scheduled surgery or treatment or it was not the attending physician who asked him to sign the consent form.

Take note that “the superior knowledge of the [healthcare provider] with [its] expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense." Again, most jurisdictions subscribe to the concept that informed consent should be measured by the "reasonable patient standard" and not by the "reasonable physician standard." In other words, the material risks of the procedure must be fully understood by the patient. A valid informed consent must not be construed that the patient assumed a possible negligent act, but rather, the patient fully understood the material risk of the procedure and he simply consented to under go the same sans breached of the standard of care.

"There is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than “ordinary care” in the provision of services." The consent is not on allowing a negligent act but on allowing the physician to render a non-negligent treatment in spite the material risk.

Thanks for your informative comment Dr. Capule. It made me think that the "reasonable patient standard" is almost never attainable because the patient can fully understand the risks of the procedure only if he/she has the same expertise as the attending doctor.

The reality is if it comes to court a reasonable patient standard becomes a question of fact and law. The question of law addresses the materiality risk issue - was the patient informed of all the material risk connected with the procedure before he gave his consent. A material risk is defined as a risk that will make a patient, using the "reasonable patient standard", think twice or should we say "brood over the risk" first before making his consent and the tough one is the "had I known offense" - I could not have consented had I known that such risk exist. Is there a formula to be followed to ensure that all the material risk are conveyed? There is a saying among lawyers that if a patient did not sue after a material risk happened then the attending physician has validly satisfied the legal requirement of an informed consent. I have handled cases on 'lack of informed consent" for physicians and its amazing to hear patients raising ridiculous reasons why there was lack of informed consent like i did not have my eyeglasses when they gave me the form, the print is too small, i was too sick when the doctor was explaining it to me, the physician was using highly technical terms and others. I must admit that "lack of informed consent" theory of liability is a tough one for physicians. I always advise physicians when I conduct seminar on the issue to really spend time with the patient. Courts are quick to impose a fiduciary duty on physicians - doctors are learned the patient is not. Lastly, "lack of informed consent" is different from "lack of consent."

With regards to Dr. Ogbogu's comment:

How does one determine whether a physician has breached a duty of care owed to the patient? How does one determine substandard care?

A breached of standard of care is a question of fact initially and eventually a question of law. One has to, by expert witness, establish the standard of care for a particular circumstance and later on how the standard was breached. Different jurisdictions may subscribe to a "locality rule", "modified locality rule" or national standard rule for a particular case. Sometimes, the case might fall under the res ipsa or common knowledge doctrine. Furthermore, even if a breached is establish, it does not necessarily means that "negligence" was committed. The breached must be proven that it was the "proximate cause" of the injury. Only then can there be negligence in contemplation of tort laws.

The issue of informed consent applies in several ways here, and the rules vary from jurisdiction to jurisdiction. What I discuss here is based on the laws of the State of New York. New York's common law is generally in keeping with the majority rule in the US.

The tort of medical malpractice is a chameleon. The plain vanilla, mine run medical malpractice case entails a departure from the standard of care that causes injury to the patient. So long as the physician exercises the level of care pertaining to "spondet peritam artis," he is not negligent and therefore not guilty of malpractice under the negligence rules.

But there is a completely different kind of medical malpractice. At common law, in the 19th Century, the rule emerged that a physician who treats in such manner as to touch his patient must have the patient's consent to the touching. Otherwise, he is guilty of assault and battery! If one impersonates a physician, the patient's consent is vitiated. Over the course of the 20th Century, the doctrine of informed consent has developed. Even though the care is completely consonant with the standard of care, the physician is still liable if he treats without consent.

Others have posted at length and well about the issues of informed consent. It may be informative that in most US states, there are two distinct ways to commit medical malpractice: careless treatment that falls short of the standard of care; and any treatment at all absent informed consent.

I think that the distinction between making a mistake that any physician of similar experience may equally make and making a “mistake” that is so far from conventional practice as to be criminal is well understood in the UK where vexation is possibly less common or better controlled.

“There, but for the grace of God, go I.” is a well-understood comment made by physicians who may read of other physicians who find themselves up before the courts. However, in reality, and away from sensational tabloid reporting, reading why physicians are up before their own professional body’s “fitness to practice” boards is salutary. By and large, when the details emerge, it would appear, in the majority of circumstances, that the behaviour that is being investigated is so exceptional as to appear bizarre. Thus, far from fearing unwarranted persecution, or prosecution, most physicians are grateful for both the professional bodies and the courts for distancing bad practitioners from good.

Dear Friends

In Australia the obligation is to inforrm the patient of all potential risks - signing a consent form may not be adequate to protect a doctor if they have not explained the risks of the operation fully

The High Court decision on this is Rogers v Whittaker - should be available on most legal data bases -

What Mr. Guthrie refers to is the essence of informed consent. If the physician does not disclose the risks, then the consent is pro tanto vitiated because of a failure to inform.

Interesting australian case recently reported