Public Health Law Map - Beta 5 - Medical and Public Health Law Site

misunderstandings about the patient’s complaint and the proposed treatment.
a) Knowable Risks
People can assume only risks that they know about. For most commonplace
activities, such as driving a car, the risks are well known and are implicitly assumed
by engaging in the activity. It is possible to assume implicitly the risks of medical
care. For example, a physician undergoing general anesthesia would be assumed to
know that general anesthesia carries a risk of anoxic brain damage. He or she would
implicitly assume this risk without the need for an explicit informed consent.
Most patients do not have the background medical knowledge to assume specific
risks of treatment implicitly. Prior to the advent of informed consent, the patient
was assumed to know that medical treatment was risky. Since the person had
sought treatment knowing that it was risky, he or she was assumed to have
accepted that the risk of treatment was less than the risk of the medical condition.
The law was not concerned with the particular form that a risk might take.
Advances in medical technology have caused a proliferation of choices in medical
therapy. Patients are no longer limited to the choice between treatment or no
treatment. This undermines the theory that the patient has accepted that the
undifferentiated risks of medical therapy outweigh the risks of the condition. With
many possible therapies for a given condition, the courts have rejected this implicit
assumption of risk. A patient must now be told of the risks that he or she is
assuming. The more particularized the information is about the potential adverse
consequences of a treatment, the more effective is the assumption of risk.
b) Unknowable Risks
Medicine is not a perfect science. All medical care is associated with unknown, and
perhaps unknowable, risks. The physician must tell the patient of the known risks of
treatment, but this is not a guarantee that other problems cannot occur. Patients
may assume these unknown risks if three conditions are met:
1. The risk is unknown (or of such a low probability that it is not known to be
causally related to the procedure).
2. The patient is informed that the disclosed risks are not the only possible risks.
3. The medical rationale for the treatment is sound.
Condition 3 means that a patient cannot assume the risks of a negligently
recommended treatment, an important issue with marginal treatments and vanity
surgery. A patient who suffers a complication from an improper treatment may
always sue the physician who recommended the treatment. A detailed consent form,
listing all the risks of a treatment, is no protection if the treatment is unnecessary. If
a patient can prove that a treatment was unnecessary or contraindicated, then the
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