Informed Consent: A “New” Form of Medical Liability?

David H. Sohn, JD, MD

The notion of informed consent is actually quite old, dating back to medieval times. Italian, French, and Middle Eastern archives from as early as the 14th century describe pro corpore mortuoto, or “hold harmless documents,” aimed at absolving doctors from responsibility for untoward events in the course of treatment. This concept has evolved to the modern day concept of informed consent, in which physicians discuss the risks of procedures with patients and obtain signed consent forms.

Informed consent has become such a commonplace event that few physicians consider this a potential generator of malpractice claims. However, the process of obtaining informed consent is a potential pitfall for malpractice liability for three reasons.

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