Key Takeaways
- Informed consent requires disclosure of material risks, not just handing a patient a form to sign.
- Texas follows the “reasonable patient standard” for evaluating what information should be disclosed.
- A physician who performs a procedure without adequate consent can face both malpractice and battery claims.
- The causation element requires showing that a reasonable patient with full information would have chosen differently.
- Consent violations often combine with technical negligence to form the basis of a comprehensive malpractice claim.
Signing a Form Is Not the Same as Giving Informed Consent
In Texas, informed consent is a legal doctrine requiring physicians to disclose the material risks, benefits, and alternatives of a proposed treatment so that the patient can make a genuinely informed decision. When that disclosure is inadequate and the patient suffers a harm that a properly informed patient might have chosen to avoid, the failure can support a Texas medical malpractice claim.
What Texas Law Requires for Informed Consent
Texas follows the “reasonable patient standard.” The question is not what this particular physician customarily discloses, but what a reasonable patient in the plaintiff’s position would consider material to a decision about the procedure. Our team can explain what medical malpractice lawyers will need from you to evaluate an informed consent claim.
What Must Be Disclosed
- The nature of the proposed treatment or procedure
- The material risks, including both probability and potential severity
- The available alternatives, including the alternative of no treatment
- The likely consequences of refusing the recommended treatment
When Informed Consent Failures Become Malpractice
Common scenarios include disclosure so truncated that the patient had no meaningful opportunity to consider alternatives, and total failure to mention a significant material risk. These situations may be evaluated alongside claims under failure to treat or surgical mistakes depending on the facts.
Informed Consent and Surgical Alterations
A specific and serious informed consent issue arises when a surgeon performs an additional or significantly altered operation that the patient did not consent to. Substantial departures from the planned procedure, particularly those involving irreversible consequences, may constitute both an informed consent violation and a battery.
Frequently Asked Questions
If I signed a consent form, can I still bring an informed consent claim?
Yes. Signing a form is evidence that some consent process occurred, but it does not automatically defeat an informed consent claim. Our article on whether medical malpractice claims are frivolous addresses the most common misconceptions families have when they believe a signed form bars their rights.
Can I bring an informed consent claim without proving the procedure was done incorrectly?
Yes, in theory. If a risk that was not disclosed materialized, even if the procedure was technically performed correctly, an informed consent claim may still exist. A Dallas medical malpractice lawyer can evaluate whether the causation element can be established.
What is the statute of limitations for an informed consent violation in Texas?
In most cases, two years from the date of the procedure. Review our medical malpractice statute of limitations FAQ for exceptions and tolling rules that may apply.
FREE CASE REVIEW: If you believe your physician failed to disclose important risks before a procedure, and you suffered a harm you were never warned about, the medical malpractice team at Rasansky McKenzie Law can evaluate your informed consent claim. Free consultation.