Medical providers will often rely on informed consent in defending against a medical malpractice case in New Mexico. Basically, the assertion is that the patient knew the risks and undertook those risks voluntarily.
This knowledge of and assent to the risks is typically based upon the reams of paperwork given a patient prior to a medical procedure. Whether or not informed consent will act as a defense will depend on the circumstances.
The New Mexico Uniform Jury Instructions (UJI) are somewhat helpful though rather sparse in language. UJI §13-1104A states the duty of informed consent as follows:
A doctor has a duty to obtain the patient‘s informed consent [, or the patient‘s representative‘s informed consent,] to [treatment] [an operation]. For consent to be valid, it must be based upon information which a reasonably prudent patient would need to know in deciding whether to undergo the [treatment] [operation].
The key language is what a “reasonably prudent patient would need to know.” This has several important implications. Every conceivable risk, foreseen or unforeseen, need not be disclosed. On the other hand, the aforementioned paperwork will often do just that.
There is certain information that a reasonably prudent patient would assuredly want to know. The medical provider must disclose factors that might “reasonably influence the patient in his decision.”
At a minimum, the medical provider must disclose the “inherent potential hazards of the proposed treatment, any alternatives to that treatment, and the results likely if the patient remained untreated.” These factors are considered material to the patient‘s decision. Failure to inform on these issues will nullify consent.
As with all medical malpractice issues, the concepts seem quite straightforward but are much more difficult in their application to any particular case.
The case-law would place a number of limitations on the duty. For instance, the doctor or medical provider may be relieved of notice on dangers that should be clear to the average patient. Likewise, there may be relief for notice on dangers of which the patient has already discovered.
However, these limitations will not often come into play due to the expansive language used in the informed consent forms used by most medical providers. What is more common is the failure to advise of alternative courses of treatment and failure to advise of the consequences of not having the procedure.
Both of these failures are much more common and much more pernicious in nature. For instance, failure to recommend or at least disclose alternative courses of treatment raises the issue of motive on the part of the medical provider since such disclosures may result in the patient going elsewhere and a loss of revenue to the provider.
This is closely related to the second, which is the failure to advise on the consequences of not having the procedure. This issue is quite common and is evident in all of the recent findings regarding unnecessary surgeries of every variety. After all, if the patient were informed that the surgery was not necessary and there are no consequences to not having it, would a reasonably prudent patient actually consent?
It is important to note that informed consent does not mean the patient consents to negligent treatment. Of course there are hazards to surgery and other medical procedures. However, just because it is possible does not mean it should happen and that negligence would be excused.
Informed consent is important since failure to obtain informed consent is negligent in and of itself. The failure will give rise to a medical negligence claim. In addition, the failure may even give rise to a claim for battery (i.e. unauthorized surgery).
These issues are quite complex and each and every issue will have countless variations and permutations depending upon the particular set of facts. It is important to seek the advice of a medical malpractice attorney if you believe you have been harmed by medical negligence.
Related Readings:
Scope of Informed Consent: Duty to Disclose Physician‘s Background?
Unsatisfactory Elective Surgery Results Does Not Equal Medical Malpractice in New Mexico