Because Relationships Matter 
Signing a consent form for a medical procedure or before surgery does not automatically prevent a medical malpractice claim in New York. Patients can still pursue compensation when negligent care causes injury or when a provider fails to obtain legally adequate informed consent.
At Fiedler Deutsch, LLP, our legal team advocates for injured patients throughout Westchester County who suffered harm despite signing pre-surgical paperwork. Whether you experienced an undisclosed risk or a completely preventable surgical error, a White Plains medical malpractice lawyer can help you investigate what happened in the operating room.
What Does a Signed Consent Form Actually Establish?
Your signature on a consent form generally documents your permission for a specific treatment or procedure. The form may also contain the information the provider gave you beforehand. Its wording, the accompanying discussion, and the medical record help establish all that you agreed to.
A signed consent form alone cannot settle a dispute about whether the doctor adequately explained the procedure. In Rymer v. Bernstein, the court explained that “The mere fact that the plaintiff signed a consent form” was not enough to dismiss a medical malpractice claim.
A Listed Risk Can Still Involve Negligent Care
You may have a malpractice claim even if the consent form listed the injury you suffered. For example, nerve damage may be a known surgical risk but a surgeon may still be liable for using an improper technique that causes preventable damage.
In Williams v. Levine, the court identified “a deviation or departure from accepted medical practice” and resulting injury as the requirements for a malpractice claim. Meaning, you must show that the provider gave substandard care and that it directly caused your injury. A medical expert can review your records to determine whether the injury was caused by negligent care or an unavoidable complication.
Did the Doctor Explain the Risks and Alternatives?
Before certain procedures, your provider must explain the treatment well enough for you to make an informed decision. New York Public Health Law § 2805-d requires physicians to disclose alternative treatments as well as “reasonably foreseeable risks and benefits.”
A form listing general surgical risks may leave out an important risk of your particular procedure. Your conversations, the consent form, and appointment notes can help demonstrate whether you received enough information before signing.
What Must You Prove About Missing Information?
An informed-consent claim requires showing that a reasonable person in your circumstances would have refused the treatment had they received all of the information. That missing information must also connect directly to your injury. For example, a procedure may cause severe nerve damage which was a risk the doctor failed to explain, and a reasonable patient would have declined that procedure after learning about the risk. An attorney can work with medical experts to review the care you received and the information your provider gave you to identify whether the evidence supports negligent treatment, lack of informed consent, or both.
Emergencies Change Consent Requirements
Claims related to informed-consent are generally limited to non-emergency treatment and diagnostic procedures. In emergencies, obtaining consent is often not reasonably possible and providers still have a duty to give appropriate medical care under those circumstances. A lawyer can examine both the opportunity to obtain consent and the treatment itself to determine whether there was a negligent error.