Informed Consent Laws for Surgery in New York

What Is Informed Consent?

Informed consent is the process by which a healthcare provider explains a proposed medical treatment or procedure to a patient, including the risks, benefits, and alternatives, so that the patient can make an informed decision about whether to proceed.

Informed consent is based on the principle of patient autonomy -- the right of patients to make decisions about their own medical care. It is also based on the legal concept of battery -- touching a person without their consent. In New York, performing a procedure without informed consent can constitute both medical malpractice and battery.

Informed consent requires more than just signing a form. It requires a conversation between the doctor and the patient, in which the doctor explains: - The nature of the proposed procedure (what will be done) - The risks (what could go wrong) - The benefits (what the procedure is expected to accomplish) - The alternatives (other treatment options, including no treatment)

The patient must have the capacity to understand the information and make a decision, and the consent must be voluntary (not coerced).

The New York Standard for Informed Consent

New York uses a patient-centered standard for informed consent, established by the New York Court of Appeals and codified in Public Health Law 2805-d. Under this standard:

- The disclosure standard is what a reasonable patient would want to know -- not what a reasonable doctor would disclose. This is different from the professional standard used in some other states, which asks what a reasonable doctor would disclose.

- The doctor must disclose all material risks -- risks that a reasonable patient would want to know about in deciding whether to undergo the procedure. A risk is material if a reasonable person in the patient position would attach significance to it.

- The doctor must disclose alternatives -- including the option of no treatment.

- The patient must consent voluntarily -- the consent must not be coerced.

- The patient must have capacity -- the ability to understand the information and make a decision.

This patient-centered standard is more protective of patients than the professional standard, because it focuses on what the patient would want to know, not what the doctor thinks they should know.

What Must Be Disclosed?

Under New York law, the doctor must disclose:

• The nature of the procedure: What will be done, in language the patient can understand. For surgery, this includes the surgical approach, the area of the body, and the expected duration.
• The benefits: What the procedure is expected to accomplish, and the likelihood of success.
• The risks: All material risks -- risks that a reasonable patient would want to know about. This includes common risks (infection, bleeding) and serious risks (stroke, paralysis, death), even if they are rare. For example, the risk of nerve damage during spine surgery, the risk of stroke during cardiac surgery, and the risk of blindness during eye surgery must be disclosed.
• The alternatives: Other treatment options, including medical (non-surgical) treatment, other surgical approaches, and the option of no treatment (watchful waiting).
• The consequences of not having the procedure: What is likely to happen if the patient does not undergo the procedure.
• The identity of the surgeon: Who will be performing the procedure. [Link to: /surgical-errors/concurrent-surgery]

Exceptions to the Informed Consent Requirement

There are limited exceptions to the informed consent requirement:

• Emergencies: If the patient is unable to consent (e.g., unconscious) and the treatment is necessary to prevent death or serious harm, informed consent may be implied. However, the emergency exception does not apply if the patient previously expressed a wish not to be treated.
• Incapacity: If the patient lacks capacity (e.g., due to mental illness, dementia, or being a minor), consent may be obtained from a surrogate decision-maker (parent, guardian, or health care proxy).
• Therapeutic privilege: In rare cases, a doctor may withhold information if disclosing it would cause serious psychological harm to the patient. This exception is very narrow and rarely applies.
• Waiver: The patient may waive the right to informed consent, for example by stating they do not want to know the details.

When Lack of Informed Consent Constitutes Malpractice

Lack of informed consent constitutes medical malpractice in New York when:

• The doctor failed to disclose a material risk that a reasonable patient would want to know about.
• The patient would not have consented to the procedure if the risk had been disclosed (this is the causation element).
• The undisclosed risk materialized and caused harm.

Proving Your Informed Consent Case

To prove a lack of informed consent case in New York, you need:

• Medical records: Including the consent form, operative report, and medical records documenting the complication. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• The consent form: The signed consent form, which may or may not document the specific risks that were discussed.
• Expert review: Independent review by qualified medical experts to establish what risks were material and should have been disclosed.
• Patient testimony: Your testimony about what was discussed and what you would have done if the risk had been disclosed.
• Causation evidence: Evidence that the undisclosed risk materialized and caused harm.
• Expert testimony: From qualified experts about what a reasonable patient would want to know and what the standard of care requires.

New York Statute of Limitations

Lack of informed consent claims are subject to the 2.5-year statute of limitations for medical malpractice (CPLR 214-a), running from the date of the procedure.

Key considerations:

• Date of the procedure: The 2.5-year clock starts on the date of the surgery.
• Continuous treatment doctrine: If you continued to receive treatment from the same provider for the same condition, the statute may be extended.
• Municipal hospitals: If the surgery occurred at a municipal hospital (NYC Health + Hospitals), a notice of claim must be filed within 90 days. [Link to: /hospital-negligence/suing-nyc-h-h]
• Wrongful death: If the lack of informed consent caused death, the wrongful death claim must be filed within 2 years. [Link to: /wrongful-death-lawyer]

Common Defense Arguments and How We Counter Them

Defense: The patient signed the consent form.

Defense attorneys use several arguments in informed consent cases:

• Our Counter: Signing a consent form is not the same as giving informed consent. The consent form is evidence that consent was given, but it does not prove that the doctor actually discussed the material risks with the patient. Many consent forms are generic and list risks in boilerplate language without a real conversation. We use patient testimony, expert testimony, and the specifics of the consent form to establish what was and was not discussed.

Defense: The risk was so rare that it did not need to be disclosed.

Our Counter: Under New York patient-centered standard, the question is not whether the risk was common, but whether a reasonable patient would want to know about it. Even rare risks must be disclosed if they are serious (e.g., paralysis, stroke, death). We use expert testimony to establish what a reasonable patient would want to know.

Defense: The patient would have consented anyway.

Our Counter: The causation element requires that the patient would not have consented if the risk had been disclosed. We use the patient own testimony to establish what they would have done. In some cases, we may also use evidence of the patient values, preferences, and circumstances to support the claim that they would not have consented.

Defense: The complication was a known risk, so the patient assumed the risk.

Our Counter: Assumption of risk requires that the patient knew and understood the risk. If the risk was not disclosed, the patient did not assume it. The fact that a complication is a known risk of the procedure does not mean the patient assumed it -- only that the doctor should have disclosed it.

Compensation Available

A successful lack of informed consent claim in New York can provide compensation for:

• Medical expenses: Including past and future medical care, revision surgeries, rehabilitation, and medications
• Lost wages and lost earning capacity: For time missed from work and reduced ability to work
• Pain and suffering: NY has no cap on non-economic damages
• Permanent disability: For complications that caused permanent harm
• Future medical care costs: Based on a life care plan, discounted to present value
• Loss of consortium: For the impact on family relationships
• Wrongful death damages: If the lack of informed consent caused death [Link to: /wrongful-death-lawyer]

What to Expect Working with MDLaw Firm

When you contact MDLaw Firm about a potential informed consent case:

• Free Consultation: We listen to your story and review the basic facts.
• Immediate Deadline Assessment: We evaluate the 2.5-year statute of limitations and any municipal notice of claim deadlines.
• Record Retrieval: We obtain all medical records, including the consent form and operative report. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• Expert Review: We engage qualified medical experts to establish what risks were material and should have been disclosed.
• Causation Analysis: We establish that you would not have consented if the risk had been disclosed, and that the undisclosed risk materialized and caused harm.
• Litigation: We file within the statute of limitations and handle all aspects of discovery and trial.
• Resolution: We pursue maximum compensation through settlement or verdict.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.