Generally speaking, if a doctor administers treatment that you did not agree to, that doctor has committed malpractice.
Of all of the uncertainties of life, one that tends to cause more anxiety than others is health. An otherwise healthy person can contract a deadly disease, get injured while doing everyday tasks, or discover a dormant genetic disorder. To help combat this anxiety, many of us rely upon our doctors. It is comforting to know that there are trained and educated professionals whose sole duty is treating the sick and infirm. Doctors, however, may not act in a way that will affect your health without your say so. If a doctor administers treatment that you did not agree to, that doctor has committed malpractice. The doctrine is called “informed consent,” and if you were injured when the doctor acted without it, the doctor is liable.
The Development of the Doctrine
The concept of informed consent truly took hold in the US in 1914, when Mary Schloendorff sued a New York hospital for battery. Her doctor sought to test a tumor by conducting a biopsy. While Ms. Schloendorff consented to a sample of the tumor to be taken and tested for malignancy, she did not consent to the tumor’s removal. While Ms. Schloendorff was under anesthesia, her doctor took the sample and tested it. It was malignant. The doctor, of his own accord and against the wishes of his patient, removed the tumor while Ms. Schloendorff was still under anesthesia. Ms. Schloendorff sued, in a famous case that went to the highest court in New York, the New York Court of Appeals.
Though the case was dismissed for unrelated reasons, then-Justice of the New York Court of Appeals (later Justice of the US Supreme Court) Benjamin Cardozo wrote in his opinion, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”
It is simple to establish a case for lack of informed consent when a surgeon oversteps the wishes of the patient as egregiously as in the above case. But the doctrine later evolved to include cases when doctors did not adequately warn of the risks a course of treatment would mean. If a doctor fails to warn a patient of the risk of injury or worsening condition, or of an alternative treatment or option, and the patient would not have consented to the treatment had he known, the doctor may be liable for medical malpractice.