Our health care team is closely monitoring proposed legislation that would upend the existing statutes regarding the written, informed consent that providers must obtain from patients.

The law currently defines informed consent as “limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.” But proposed new language mandates, more expansively, that providers obtain informed consent before “any proposed treatment or procedure.” This may imply that a physician, provider or hospital must obtain consent for everything -- from review of medical records as part of clinical research to a standard reflex test within an annual exam -- in order to ensure compliance with the law and avoid potential malpractice action.

Lack of informed consent is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved … in a manner permitting the patient to make a knowledgeable evaluation.” Currently, emergency situations and non-invasive diagnostic procedures fall outside of the scope of the right to sue for malpractice based on lack of informed consent. This broader legislation may change this ruling, placing additional compliance burdens on health care providers.