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When Lack of Informed Consent Is Not the Issue
People about to undergo an operation or other medical procedure are, as a matter of routine, offered information about the upcoming procedure. The mechanics of the procedure, the progression of recovery and the potential hazards are all explained, in conformance with the informed-consent doctrine, which requires that people be given the information that any patient in their situation would want to consider before deciding on whether to have an operation.
When a plaintiff alleges that informed consent was not obtained, the charge to the jury will likely be something like New Jersey', which informs jurors that a plaintiff has a cause of action for failure to obtain informed consent when the treatment rendered was associated with a known risk, the plaintiff was not told of the risk, the harm that was risked actually occurred, and a reasonable person in the patient's position would have rejected the treatment if informed of the risk. New Jersey's Model Jury Charge (Civil) 5.50C.
The lists of possible problems that the patient is informed he or she might encounter during or after the proposed procedure frequently go so far as to state that death could result, even from something as seemingly benign as a root canal. And no wonder; people have indeed died during or soon after root canal procedures, from anesthesia accidents or from infection, for example.
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