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Informed consent requires a doctor to discuss a medical procedure with the patient and explain associated risks. A patient signs the form agreeing that she understands and accepts a risk of chronic nerve pain with this procedure. Her brother likewise accepts the risks and signs for his operation.

The siblings have surgery on the same day in the same hospital with different doctors. The sister’s operation is textbook perfect, yet she wakes up with pain. The brother’s operation did not proceed as well; his doctor’s scalpel slipped and sliced a wedge out of the nerve causing an unrepairable defect. Brother and sister have the same level of pain.

Two consent forms, two outcomes

The brother and sister file separate malpractice lawsuits against the doctors and the hospital. The defendant’s attorney strides in over the prosecuting attorney’s objections and easily wins the case for the doctor against the sister. He was not guilty of malpractice. The operation was perfect. She did sign that she understood the risk.

Next, the prosecuting attorney points out the defect in the nerve caused by the surgeon’s error. Regardless of any pain risk, this was preventable damage and fit the criteria for medical malpractice. Without the defect, the brother might have emerged pain-free. The risk of pain for him was a chance, not a certainty, but a nerve laceration led to the certainty that the brother would have chronic pain. The defense attorney loses his case. The brother wins a fair settlement.

The jury is a bit confused. Both brother and sister signed the same forms, they had the same surgeries and agreed to the same risks. They each received identical poor outcomes. They can finally come to a consensus on each case when one of the jurors, a nurse by profession, explains that the risk is a red herring. The real issue is that one surgery was perfect and the other caused a devastating injury. The brother did not consent to sign away his rights to a competent surgery. He simply signed his willingness to accept a known risk associated with corrective surgery.

This story illustrates a growing trend in today’s medical malpractice litigation. More states now accept that informed consent is not wholesale consent to shoddy medical practice. Legal ethics calls for consideration of evidentiary relevance in situations such as this one.