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Learning from informed consent litigation to improve practices: A systematic review.

Karine Giudici-Wach¹, Pierre Gillois², Thomas Remen³

¹University of Lorraine, APEMAC, Faculty of Medicine, 9 avenue de la Forêt de Haye, F-54 505 Vandoeuvre les Nancy CEDEX, France.

Patient Education and Counseling

|October 30, 2021

Summary

Judges frequently cite lack of information as medical malpractice, leading to health professional (HP) convictions in over 70% of cases. This highlights critical gaps in disclosure obligations within healthcare law.

Keywords:

Informed consent Litigation Malpractice claims Patient’s right Quality of care

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Area of Science:

Medical Law
Legal Medicine
Health Law

Background:

Disclosure obligations are crucial in healthcare, impacting patient autonomy and informed consent.
Breaches in providing adequate information can lead to legal consequences for health professionals.
Understanding judicial reasoning in malpractice cases is vital for improving healthcare practices.

Purpose of the Study:

To analyze the reasons behind judicial findings of malpractice due to lack of information.
To determine the outcomes of cases where health professionals were found liable for insufficient disclosure.
To identify patterns in malpractice litigation related to information deficits.

Main Methods:

Systematic review of case law from 2010 to 2020.
Utilized three comprehensive legal databases: Légifrance, Dalloz, and Lexis 360.
Included 514 relevant law cases concerning breach of disclosure obligations.

Main Results:

Lack of information was cited as malpractice in 73.3% of cases (377 out of 514).
Common issues included lack of risk information (68.2%), lack of proof of information (64.5%), and lack of information on alternatives (13.0%).
Health professionals were convicted in 71.1% of these malpractice cases (268 cases).

Conclusions:

Case law demonstrates a significant judicial focus on information disclosure in malpractice assessments.
Inadequate information provision, or its documentation, frequently leads to adverse legal outcomes for health professionals.
Insights from case law can inform improvements in healthcare provider training, legal practices, and judicial decision-making.