If you suffered a serious complication after a procedure in Atlanta and no one told you it could happen, you may be asking whether your consent was truly informed. Our Atlanta medical malpractice lawyer can review your consent forms and records and explain whether Georgia’s disclosure rules were followed. Moriarty Medical Malpractice Lawyers prepared this guide to explain what informed consent requires and when its absence can support a claim.
What Informed Consent Means
Informed consent is a patient’s right to understand a proposed procedure before agreeing to it. In Georgia, the core rules appear in O.C.G.A. § 31-9-6.1. The statute applies to three kinds of procedures:
- Any surgical procedure performed under general anesthesia, spinal anesthesia, or major regional anesthesia
- An amniocentesis diagnostic procedure
- A diagnostic procedure that involves an intravenous or intraductal injection of contrast material
For these procedures, the patient must consent and must be informed in general terms of specific information. The physician who performs the procedure, or who directs it, is responsible for making sure that happens. Nurses, physician assistants, trained counselors, videos, or pamphlets may be used to deliver the information.
What Must Be Disclosed
Under the statute, the patient must be told about:
- The diagnosis that requires the procedure
- The nature and purpose of the procedure
- The material risks of the procedure
- The likelihood of success
- The practical alternatives that reasonably prudent physicians generally recognize and accept
- The prognosis if the patient declines the procedure
The statute limits “material risks” to a defined list: infection, allergic reaction, severe loss of blood, loss or loss of function of a limb or organ, paralysis or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac arrest, or death. A risk on that list is material if disclosing it could reasonably be expected to cause a reasonably prudent person in the patient’s position to decline the procedure.
The duty to explain alternatives matters most when a less invasive option existed. A patient who was not told about accepted alternatives may have grounds to question whether an unnecessary surgery was performed.
When a Lack of Informed Consent Can Support a Claim
A failure to follow the statute is not a separate type of lawsuit. It may support a medical malpractice claim against the responsible physician, the hospital or surgery center, or the practice that employs the physician. The patient must show three things:
- An injury caused by the procedure. The patient suffered an injury that the procedure proximately caused.
- A missing disclosure. Information about that injury was not disclosed as the statute requires.
- A different decision. A reasonably prudent patient would have refused the procedure, or chosen a practical alternative, if the information had been disclosed.
The test in the third point is objective. It asks what a reasonably prudent patient would have done, not only what this particular patient says they would have done.
A consent claim also requires the sworn statement Georgia requires at filing. For these claims, the statute specifies that the qualified medical witness’s affidavit must state that the procedure caused the injury and that the injury was a material risk the law required to be disclosed. Our guide to the affidavit of merit explains the filing requirement.
How Consent Claims Differ From Treatment Errors
A consent claim is about what the patient was told before the procedure. A treatment error is about how the procedure was performed. The two can overlap, but they are proven differently.
A signed consent form does not excuse negligence. If a surgeon injures a nearby organ through poor technique, or a monitoring failure leads to an anesthesia error, the claim rests on the quality of the care rather than on the consent form. Those cases are handled as surgical errors or other treatment claims. Our guide explaining what medical malpractice is covers the difference between a known risk and negligence.
The consent form itself carries weight. A written consent that discloses the required information in general terms and is signed by the patient is presumed valid, though the presumption can be rebutted. If a required consent was not obtained in writing, no presumption of validity arises. Your consent forms are part of your chart, and our guide to requesting your medical records explains how to obtain them.
When Disclosure Is Not Required
The statute lists exceptions. Disclosure and consent under § 31-9-6.1 are not required when:
- An emergency exists as defined by Georgia law
- Reasonably prudent physicians generally recognize the procedure as involving no material risk
- The patient or authorized person asked in writing not to receive the information
- A compliant consent for the same procedure was obtained within the prior 30 days as part of a course of treatment
- The procedure was unforeseen and the patient had authorized the physician to decide on it
Obstetric care can raise these questions, since amniocentesis is one of the covered procedures. Families pursuing birth injury claims may want the consent forms reviewed along with the delivery records.
The Georgia Composite Medical Board has adopted rules implementing the statute. Under those rules, a physician who fails to comply may face discipline from the board, which is a separate process from a civil claim.
Talk With Our Attorneys About Your Procedure
Continue any medical care you need and follow the advice of a treating physician about your health. This guide explains general legal rules and is not medical advice.
Moriarty Medical Malpractice Lawyers represents patients and families in Atlanta and nearby communities, including Peachtree Corners. Contact us to schedule a free consultation and have our attorneys review your consent forms and records.
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