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    If my patient signed a consent form, why can he sue me?


    Dr. Peel treated a patient for her wrinkles. Both he and his staff warned her of the small — but present — risk of scarring from the procedure. She signed a consent form, that documents she has assumed all risks from the procedure. Unfortunately she was scarred from the procedure. She sues her dermatologist. He is assured by a law student friend that the patient assumed this risk and that Dr. Peel needn’t worry about the lawsuit. Is this true? Is assumption of the risk a legal defense for Dr. Peel?

    A patient who is aware of the dangers involved in a treatment but still agrees to undergo that treatment, either by an express agreement or as implied by their conduct, to proceed anyway should, logically, then be barred from suing. On first blush, this seems to fit a typical medical malpractice setting. After all, patients are informed of the cons as well as the pros of a treatment and then agree to proceed either expressly by signing a consent form or impliedly by accepting the treatment.

    Assumption of risk

    Physicians often do not understand why having a valid signed consent from the patient fails to knock the lawsuit right out of the box. This bewilderment is not surprising because assumption of risk superficially does look like the informed consent doctrine. As with informed consent, a patient must be informed of specific risks and agree to proceed anyway. And, like informed consent, assumption of risk does not cover reckless or intentional conduct by the defendant. However, a closer look at assumption of risk explains why it is rarely applicable in the medical malpractice setting.

    Express assumption of risk is a defense asserted in cases involving injuries that occur during inherently dangerous recreational activities — like bungee jumping. It is usually based on a release the participant signs with the operator. This release can vary in what it covers. It can permit an action for negligence if there is an injury, but will more likely restrict any future claims to an operator’s reckless or intentional conduct (e.g.: the bungee operator was drunk and used a cord that was too long). If so, it eliminates the duty of care that runs from the defendant to the plaintiff. Hence, there can be no claim of negligence. Such an agreement bars a claim for a subsequent injury unless the operator actually was reckless or intended to cause the harm.

    Implied assumption of risk is a defense asserted in cases involving injuries that occur when the plaintiff was voluntarily in a place where an activity with dangerous aspects was going on, like attending a baseball game.

    There is obviously no document stating that the individual consented to the risk of being beaned by an errant ball, but their choice to sit in a place where such events are known to happen is held as evidence of their consent to assume that risk. When these principles are applied to medical care, however, they fit poorly.

    Duty to protect

    The idea that the physician could owe no duty to protect the patient from the risk of the medical harm that caused the injury is antithetical to the very practice of medicine. Public policy would never condone any level of poor medical conduct to be acceptable simply because the patient agreed to try a treatment the doctor recommended.

    If that were the case, the consent form would make the lay-patient solely responsible for any harm he suffered. The trained physician who recommended and performed that treatment would owe no responsibility to the patient as long as he wasn’t completely reckless and didn’t try to hurt the patient intentionally.

    Consent, in the medical setting, is being given to medical care rendered correctly.

    The patient, by agreeing to the recommended treatment after being informed of its risks, is only acknowledging negative consequences of treatment can still occur even if the treatment is carried out properly. He is not agreeing to treatment performed negligently, which then produce the harm found in the consent form.

    Applying the assumption of risk doctrine to situations where a patient who has been informed of the dangers of refusing proper treatment — and still chooses to proceed — is reasonable. But extending the doctrine to bar claims of patients who agree to exactly what their doctor suggested and were harmed is not reasonable.

    A joint agreement

    This brings us to the practical utility of the assumption of risk doctrine in medical malpractice litigation.

    Since most medical malpractice cases are about bad results from recommended standard treatment, the assumption of risk doctrine has little place in a doctor’s defense.

    Assumption of risk adds little substantively to what the comparative and contributory negligence doctrines already allow. There, the defendant describes the plaintiff’s own culpable conduct.

    The next time you take consent, remember that, rather than it being a permission slip from the patient, it signifies that you and the patient are agreeing to jointly enter the treatment process. The patient must bear responsibility for any conduct of his own that undercuts that process, but you retain your full duty of care.

    Dr. Peel, if his patient is scarred after he performed the procedure correctly, is protected because he warned his patient this might happen. He is not protected solely because the patient signed a form that stated she “was assuming the risk.” 

    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...


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