Informed Consent: There Is A Reason The Law Absolutely Requires That The Patient Be “Informed” Before The Patient Can Ever Give “Consent”

Jan 13, 2015
Paul M. da Costa

Too often, patients wrongly assume that the signing of an informed consent document means that whatever happens during a surgery is acceptable and the law will not allow them to be fairly compensated for their injuries.  This belief, however, is not based on New Jersey law.  Rather, New Jersey law explicitly provides that a patient must first be informed before any consent can be effectuated.  In addition, the signing of an informed consent document does not permit the surgeon to perform the surgery or procedure in a negligent manner.

The New Jersey Supreme Court has made it clear that a doctor has the duty to inform his/her patient of all available treatment options and their corresponding risks, so as to allow the patient to make an informed decision regarding their treatment.  The physician is required to disclose all medically reasonable treatment alternatives irrespective of whether the treatment option is one that the physician recommends or not.  Thus, it is ultimately the patient’s legal right to be informed of all reasonable treatment options, and it is the patient’s right to decide which treatment option to proceed with.  The New Jersey Supreme Court has also established that physicians have a duty to provide their patients with all material information necessary to ensure that the patient can make an informed decision regarding available treatment options and their associated risks.

If a surgical procedure was not actually medically indicated and necessary, it is irrelevant that a patient signed an informed consent document.  Once the surgeon proceeds with a procedure that should never have been performed, he/she will be responsible for any complications and injuries that result from the performance of the surgery.  Specifically, even if a complication occurs during the surgery that normally would be a known and acceptable risk of the surgical procedure, the patient is still entitled to compensation for the occurrence of that complication since the surgery should have never been performed in the first place.  A signed informed consent document will also not prevent a patient from obtaining compensation for injuries from a surgery if the injuries that occur are not known potential risks of the surgical procedure.  Thus, a surgeon is not able to negligently perform a procedure and not be responsible to compensate the patient just because the patient signed an informed consent document.  Call Paul M. da Costa, Esq. and the experienced attorneys at Sarno da Costa D’Aniello Maceri LLC today for assistance.