What happens if a hospital fails to obtain my informed consent?

Before undergoing a medical procedure, you typically must give informed consent to that procedure. This means you must be informed of the risks and benefits of the procedure, of how the procedure will be performed and by whom, of alternative treatment options and of what your prognosis is both if you have the procedure or if you do not. Hospitals are expected to have policies in place in order to ensure that you give informed consent and if they do not have such a policy or if the policy is not followed, you may be able to hold the hospital liable for hospital medical malpractice.

Informed Consent Rules and Exceptions

According to the Centers for Medicare and Medicaid Services (CMS), hospitals have an obligation to ensure that hospital employees and staff obtain informed consent. Among the CMS guidelines is a requirement that signed consent forms be on file before surgery is performed and a mandate that hospitals must be responsible for ensuring that staff follows their informed consent rules.

There are, however, some exceptions to obtaining informed consent. When a patient comes to the hospital in a state of emergency or unconsciousness, the patient obviously cannot give informed consent. In such emergency situations, the patients' close family members or healthcare proxy (person given power of attorney to make decisions) will be asked to consent to procedures. If there is no one available to consent, the treating physician may generally take action in the best interest of the patient without obtaining prior permission. 

Liability for Lack of Informed Consent

If informed consent is not obtained when it is required, the hospital can be held liable for damages. The hospital can be held liable in one of two ways:

• Vicarious liability. This is liability assigned to the hospital by virtue of the fact that hospital employees are considered agents of the hospital. In vicarious liability cases, both the healthcare provider who did not obtain consent and the hospital can be held jointly and severally liable, which means each may pay all or part of the damages awarded to you.
• Negligence. This is liability assigned to a hospital because the hospital itself is negligent. Hospital negligence is defined by whether a reasonable hospital would have acted differently or had different policies or procedures in place. A hospital that fails to create or enforce an informed consent policy can be considered negligent in its own right.

Consulting a Malpractice Attorney

If non-emergency medical treatment was performed on you without sufficient informed consent, you should consult with an experienced hospital medical malpractice attorney as soon as possible to learn what your options are for holding the hospital liable for damages.