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This article is meant to discuss "informed consent" and its importance in medical treatment. We will start with a fictional story about 25-year-old Alberta.
Alberta's Story
Alberta, a resident of Illinois, visited her dental clinic one afternoon for a checkup and was notified that she had some cavities. The dentist provided a treatment plan and informed her of the cost. Alberta signed up for the treatment plan, which required about five visits to the dentist. On her fifth visit, the dentist informed her that additional visits were needed to correct some mistakes in the earlier treatment at very little to no cost. Alberta agreed to these additional visits to correct these errors. During these visits, the dentist decided to perform additional treatments and presented Alberta with a consent form to sign, which she signed. After her treatment on her second additional visit, Alberta was surprised to receive a $900 bill that was not part of her initial treatment plan and was never communicated to her. She refused to pay the $900 and claimed that she did not give informed consent for the additional treatment. The dental clinic argued that Alberta gave consent by signing the forms presented to her (which did not have any statement about the cost) and therefore she owed the clinic $900 for the additional treatment.
Did Alberta give informed consent for the additional treatment? To answer this question, we must first understand what “informed consent” is.
Principles of Medical Ethics
One of the cardinal principles of medical ethics for medical professionals (dentists, physicians, etc.) is the obligation to respect patients’ rights to make their own decisions (autonomy). To be able to achieve this, the patient has to be well-informed. Informed consent is the right of a patient to permit medical treatment voluntarily and freely after all relevant information about the treatment has been given to the patient. The right to give permission for treatment can be exercised by either the patient personally or any other person with the right to give consent to treatment on behalf of the patient, like a parent or a person with a healthcare power of attorney. Informed consent is grounded in both medical ethics and law.
For this discussion, we will draw inspiration from two of the most respected medical professional associations in the United States: the American Medical Association (AMA) and the American Dental Association (ADA). We will discuss their code of ethics and opinions, which is not the law, but very persuasive documents in advancing legal arguments in respect of the rights of patients.
The ADA in their Principles of Ethics & Code of Professional Conduct provides in section 1 that “The dentist has a duty to respect the patient’s rights to self-determination and confidentiality.” This provision highlights patient autonomy in making decisions and underscores the need for patients to be well-informed to make decisions that meet their needs, desires, and abilities.
The AMA has provided some guidelines to physicians advising them to seek informed consent from patients. The formal Opinion 2.1.1 of the AMA Principles of Medical Ethics provides that a physician in seeking informed consent should:
- “Assess the patient’s ability to understand relevant medical information and the implications of treatment alternatives and to make an independent, voluntary decision.
- Present relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information. The physician should include information about:
- the diagnosis (when known);
- the nature and purpose of recommended interventions;
- the burdens, risks, and expected benefits of all options, including forgoing treatment.
- Document the informed consent conversation and the patient’s (or surrogate’s) decision in the medical record in some manner. When the patient/surrogate has provided specific written consent, the consent form should be included in the record.
In emergencies, when a decision must be made urgently, the patient is not able to participate in decision making, and the patient’s surrogate is not available, physicians may initiate treatment without prior informed consent. In such situations, the physician should inform the patient/surrogate at the earliest opportunity and obtain consent for ongoing treatment in keeping with these guidelines.”
Causes of Action for Violation of a Patient's Right to Informed Consent
A violation of a patient’s right to informed consent can give rise to an action for medical malpractice (negligence), battery (unlawful, intentional, or reckless physical contact with a person), breach of contract (where the relationship is governed by a contract), a violation of statutory rights (where informed consent has been codified), or fraud and misrepresentation.
Case Law on Medical Malpractice (Negligence)
Illinois courts have discussed the issue of informed consent in medical malpractice. In the case of Coryell v. Smith, 274 Ill. App. 3d 543, 653 N.E.2d 1317 (1995) the court held that to succeed in a medical malpractice action based on lack of informed consent, the plaintiff must plead and ultimately prove four essential elements: (1) the physician had a duty to disclose material risks; (2) the physician failed to disclose or inadequately disclosed such risks; (3) as a direct and proximate result of failure to disclose, the patient consented to the treatment they otherwise would not have consented to; and (4) the patient was injured by the proposed treatment.
The court went on to say:
“‘All courts recognizing the doctrine of informed consent require proof of proximate causation. The rule is that a plaintiff cannot recover under the doctrine unless [they] can prove by a preponderance of the evidence that [they] would not have given consent to the proposed procedure had full and adequate disclosure been made at the time consent was originally given.’ (61 Am. Jur.2d Physicians, etc. § 197 (1981).) To establish such a causal connection a plaintiff must point to significant undisclosed information relating to the treatment which would have altered [their] decision to undergo it. Illinois courts follow the majority of jurisdictions in using an objective standard to determine whether a plaintiff has made such a showing.”
However, if the disclosure would not have changed the decision of a reasonable person in the circumstance of the patient, then there is no causal connection to give rise to liability.
Information on Cost of Medical Treatment
Knowing the cost of treatment is crucial for patients to give informed consent. According to Opinion 1.1.3 of the AMA Principles of Medical Ethics, patients have the right to receive information about treatment costs. This opinion states that patient rights include the right:
“To receive information from their physicians and to have opportunity to discuss the benefits, risks, and costs of appropriate treatment alternatives, including the risks, benefits and costs of forgoing treatment. Patients should be able to expect that their physicians will provide guidance about what they consider the optimal course of action for the patient based on the physician’s objective professional judgment.”
Patients require information on the cost of treatment to understand the financial implications of their decisions. This empowers patients to avoid or minimize medical debt or possible financial hardship in pursuing treatment options.
Further, where the cost of treatment includes non-clinical and administrative services fees, Opinion 11.3.2 of the AMA Principles of Medical Ethics provides that a physician should “clearly notify patients in advance of fees charged by the practice (if any) for nonclinical or administrative services”. The non-clinical and administrative service fees should not come as a surprise to the patient.
The ADA on the other hand, in Section 5 of their Principles of Ethics & Code of Professional Conduct provides that “The dentist has a duty to communicate truthfully.” Sections 5 A & B go on to say that dentists shall not represent the care being rendered to patients and the fees being charged for the care falsely or misleadingly.
If information about the cost of treatment is withheld or misrepresented, some of the legal questions that could be asked are:
- Would the patient have given consent to the treatment if full disclosure about the cost had been made?
- Is the information about the cost of treatment significant enough that it would have altered the patient’s decision to undergo the treatment?
If the patient would not have undergone the treatment had full disclosure about the cost of treatment been given, this could give rise to an action for medical malpractice (negligence) against the medical professional.
Disclosure of cost associated with medical treatment is a necessary part of informed consent and empowers patients to make comprehensive decisions regarding their healthcare. Patients can obtain assistance from the accounting department of the medical facility. Also, medical professionals must ensure that the informed consent being sought from the patient is properly documented. This can be achieved by including the cost of treatment on consent forms signed by the patient. However, an exception to the general principles on informed consent laid above would be during an emergency where the patient is unable to give consent or any other person with the right to give consent to treatment on behalf of the patient is unavailable. In such circumstances, the medical professionals may provide treatment and obtain informed consent at the earliest opportunity for ongoing treatment.
Analysis of Alberta's Story
Now back to whether Alberta gave informed consent for the additional treatment. The dental clinic argued that Alberta gave consent by signing consent forms before receiving the additional treatment. On the other hand, Alberta argued that she did not give informed consent because the cost of $900 was not disclosed to her before she signed the consent forms for the additional treatment. Alberta, as a patient, had a right to receive information about the cost of her additional treatment. Applying Coryell, the additional treatment cost of $900 was a significant undisclosed information that could have altered Alberta’s decision to undergo the treatment. The dentist by not disclosing the $900 cost before or at the time Alberta signed the consent forms breached her right to give informed consent. Alberta is most likely to succeed should she decide to take legal action against her dentist.
Conclusion
It is important to understand your right to informed consent as a patient. It gives you the awareness to demand relevant information critical to your healthcare needs from medical professionals. Every patient deserves the right to understand the nature of their healthcare problem (when known), the options for treatment, the benefits and risks associated with each option, as well as the cost of each treatment plan.
A patient has the liberty to take legal action against a medical professional for a violation of their right to informed consent. A patient, who is a resident in Illinois, may also report a violation of their right, depending on the nature of the violation, to one of the following agencies:
The Illinois Department of Public Health provides details on the circumstances to report to each of the aforementioned institutions on their File a Health Care Complaint web page.
