Informed Consent in New York: What Your Doctor Must Tell You

Before a procedure, you are usually handed a form to sign. The form is evidence that a conversation took place. It is not the conversation itself, and New York law is concerned with the conversation.

What the law requires

Under Public Health Law § 2805-d, a practitioner must disclose the alternatives to the proposed treatment and the reasonably foreseeable risks and benefits involved, as a reasonable practitioner would under similar circumstances, in a way that lets the patient make a knowledgeable evaluation.

That means you should understand:

• what is being proposed and why,
• the significant risks,
• the reasonable alternatives, including doing nothing, and
• what is likely to happen with and without the treatment.

When the rule applies

A claim for lack of informed consent is limited to:

• non-emergency treatment, procedures, or surgery, and
• diagnostic procedures that involve invasion or disruption of the integrity of the body.

It does not apply to emergencies, where there is no time for the discussion.

What a patient has to prove

A bad outcome alone is not enough, and neither is proof that a risk was not mentioned. The patient must also show:

1. that a reasonably prudent person in the patient's position would not have undergone the treatment if fully informed, and
2. that the lack of informed consent was a cause of the injury.

The first point is the one that defeats many claims. The question is not only what you would have decided, but what a reasonable person in your position would have decided. If the procedure was clearly necessary and any reasonable patient would have gone ahead despite the risk, the claim will likely fail.

Expert medical testimony is required to establish what a reasonable practitioner would have disclosed (CPLR 4401-a).

The defenses

The statute gives practitioners several defenses, including that:

• the risk was too commonly known to need explaining,
• the patient said they would go ahead regardless of the risk, or said they did not want to be informed,
• consent was not reasonably possible, or
• the practitioner reasonably believed that full disclosure would have substantially harmed the patient's condition.

How this differs from ordinary malpractice

They are separate claims and are often brought together. A malpractice claim says the procedure was performed badly, or should not have been recommended. An informed consent claim says that even if it was performed properly, you were not given what you needed to decide whether to have it.

A known complication can occur without anyone being negligent. If that complication was never disclosed, and a reasonable patient would have declined the procedure had they known, there may still be a claim.

The deadline

A claim for lack of informed consent is subject to the same deadline as other medical malpractice claims: generally two years and six months (CPLR 214-a), and far less when a public hospital is involved.

If you think you were not told

Request your complete chart, including the consent form and the notes from the visits before the procedure. Write down what you remember being told, by whom, and when. Then have the records reviewed.

If you suffered a serious complication you were never warned about, call the office. For more, see Medical Malpractice.