Table of Contents
Introduction: Your Right to Know
Florida patients have the right to make informed decisions about their medical care. Lack of informed consent when a doctor fails to properly inform a patient before a procedure can form the basis of a medical malpractice claim. This article explains what informed consent means legally and ethically, Florida’s specific laws on informed consent (including Fla. Stat. § 766.103), what counts as a lack of informed consent, and how patients can pursue a claim in Florida. We’ll also cover common scenarios (surgery, OB-GYN, anesthesia, experimental treatments) and how these claims differ from other negligence claims. The goal is to educate Florida readers on their rights and the legal process in clear, plain language.
What Is Informed Consent in Medical Practice?
Informed consent is the process by which a healthcare provider educates a patient about a proposed medical treatment and obtains the patient’s agreement to proceed. This process is both a legal and ethical requirement designed to protect patient autonomy and promote shared decision making. For consent to be “informed,” the doctor must explain, in understandable terms, all the important facts a reasonable patient would want to know, including:
After receiving this information, the patient (or their authorized decision maker) should have the opportunity to ask questions, discuss concerns, and take time to consider their choices. The consent should be given voluntarily, without coercion or pressure, and the patient should be mentally competent to consent.
Simply signing a form is not enough if the discussion and understanding aren’t there true informed consent means the patient comprehends the information and agrees freely. In emergency situations, or when a patient is unconscious or otherwise incapable of consent, formal informed consent may not be required.
Florida law (and ethical standards) recognize exceptions like implied consent in life threatening emergencies where treatment can’t wait. Aside from such rare cases, informed consent is required for most non emergency medical interventions. It is a cornerstone of respecting patients’ rights and autonomy in healthcare.
Florida’s Legal Requirements for Informed Consent
Florida has codified the doctrine of informed consent in statute. The Florida Medical Consent Law, Fla. Stat. § 766.103, sets specific requirements that healthcare providers must meet before performing a treatment or procedure. Under this law, a doctor or other provider (physician, osteopath, dentist, podiatrist, ARNP, or physician assistant) must disclose information according to the accepted standard of medical practice in the community and in a manner understandable to the patient. In essence, Florida’s law creates a two pronged test for adequate informed consent:
Accepted Medical Standards:
The provider’s method of obtaining consent should align with what a reasonably prudent similar medical professional would do. In other words, the scope of information and explanation should meet the professional standard of care for disclosure. For example, if most competent surgeons in that specialty would warn about a particular complication, the surgeon in question should do the same.
Patient Understanding (Reasonable Patient Standard):
The information provided must be sufficient for a reasonable individual to generally understand the procedure, its substantial risks and hazards, and alternative treatments. Florida uses a “reasonable patient” perspective the focus is on what an average patient would need to know to make an informed decision. Key details about the procedure, major risks (especially those that are serious or frequent), and alternatives should be conveyed in plain language.
If a provider fulfills both of the above (i.e. discloses information consistent with medical standards and enough for a reasonable patient to understand), and obtains the patient’s signature on a written consent form, the consent is presumed valid under Florida law. A signed written consent that meets the statutory criteria creates a rebuttable presumption that the consent was informed and valid. However, this presumption can be overcome if evidence shows the disclosure was inadequate or misleading despite the signed form.
Florida Statute § 766.103 also provides a sort of “causation defense” for doctors:
A patient cannot recover damages for lack of informed consent if the doctor proves that a reasonable patient in the same situation would have agreed to the treatment even if fully informed. This means that even if a risk wasn’t disclosed, if just about anyone with the patient’s condition would have gone ahead with the procedure knowing that risk, the doctor might not be held liable (since the lack of information didn’t actually change the outcome).
In practice, this is a high bar and often a point of contention in litigation. In summary, Florida law requires healthcare providers to give patients all material information about a proposed treatment enough that the patient can make an informed choice. Failing to do so violates the patient’s rights and can lead to legal consequences if the patient is harmed as a result.
When Consent Is Lacking or Invalid
Not every signed consent form equals valid informed consent. Lack of informed consent means the patient’s agreement to treatment was not truly informed or not truly voluntary. There are several ways that consent can be inadequate or invalid:
Inadequate explanation of risks:
The provider fails to mention a significant risk or potential complication that a reasonable person would consider important. For example, not disclosing that a surgery could result in a known serious side effect or long term disability. Similarly, downplaying a risk’s likelihood or severity can mislead the patient. If a patient isn’t made aware of a risk that later materializes, the consent may be considered uninformed.
Failure to disclose alternatives:
The provider doesn’t inform the patient about available alternative treatments or approaches. Patients should be told if there are other options (including different procedures or medications, or the option of no treatment) and the pros/cons of each. If only one path is presented when choices existed, consent is not fully informed.
Rushed or missing consent process: The consent discussion is hurried, or the patient is simply handed a form to sign without discussion. In some cases, no consent form is obtained at all. For instance, having a patient sign a surgical consent moments before anesthesia, with little to no conversation, could be problematic. Florida law expects an interactive process, not a mere checkbox exercise.
Language or communication barriers:
The patient may not understand the information because of language differences, low health literacy, or cognitive impairments. If a patient speaks Spanish but the consent form and discussion were only in English, or if complex medical jargon is used that the patient cannot grasp, the patient’s understanding is compromised. Providers should use interpreters or simplified language as needed to ensure comprehension. If the patient didn’t truly understand what they were agreeing to, the consent is questionable.
Lack of voluntariness or coercion:
True consent must be given freely. If a patient is pressured, misled, or coerced into saying “yes,” then the consent is not valid. Examples might include a doctor scaring a patient with exaggerated consequences of not doing the procedure, or a patient feeling they must sign immediately without the chance for a second opinion. Patients should have time to consider and the freedom to decline or seek alternate advice.
Patient not competent or informed at the time:
If the patient was not mentally competent (e.g. heavily sedated, confused, or a minor without a proper guardian’s consent) when consent was obtained, it may be invalid. In Florida, a valid signature requires the person to be mentally and physically competent under the circumstances. Additionally, if new information comes to light or the scope of the procedure changes, the provider may need to obtain updated consent. Performing additional procedures beyond what was agreed (unless urgently necessary) can violate the scope of consent.
No consent at all (unauthorized treatment):
The most extreme case is when a doctor performs a procedure that the patient never consented to in any form. This could be doing a surgery on the wrong site or a completely different procedure than discussed. In such cases, not only is informed consent lacking any consent is lacking, which could give rise to a medical battery claim in addition to malpractice. For example, if a patient consented to a left knee surgery and the surgeon operated on the right knee by mistake, that’s an unauthorized touching (battery), regardless of how well the surgery itself was done.
In Florida medical malpractice cases, lack of informed consent is often alleged when a patient suffers an outcome and believes they weren’t adequately warned beforehand. If consent was obtained through fraud (intentional misrepresentation) or important facts were omitted, the consent is not valid. It’s important to note that informed consent does not mean a doctor must explain every conceivable detail or rare risk. The focus is on material risks those significant enough that they would influence a reasonable patient’s decision. However, if a provider omits something central to the decision, the patient’s agreement is essentially uninformed.
Lack of Informed Consent as Medical Malpractice
When a doctor fails to meet the informed consent requirements and the patient is harmed as a result, it can constitute medical malpractice. In Florida, a claim based on lack of informed consent is a type of negligence claim in the medical context. The essence is that the physician breached their duty to adequately inform the patient, thereby depriving the patient of the chance to make an informed choice. Importantly, lack of informed consent is actionable even if the medical procedure itself was performed competently.
The injury to the patient in these cases is often the occurrence of an undisclosed risk. For example, suppose a doctor does a surgery perfectly, but fails to warn the patient about a known risk of severe infection. If the patient develops that infection and suffers complications, the patient might claim they would have refused or chosen a different treatment had they known of that risk.
The doctor’s failure to disclose key information is then the negligent act, and it can lead to liability even though the technical care was otherwise acceptable. Florida recognizes two possible legal theories in such situations:
Medical malpractice (negligence) for lack of informed consent:
This is the most common approach. The patient alleges the provider breached the duty to inform. It falls under Florida’s medical negligence laws and requires proving the elements discussed in the next section. Most lack of consent cases are pursued as negligence based malpractice claims.
Medical battery:
In more egregious cases, if a doctor completely fails to obtain any consent, or performs a substantially different procedure than the one consented to, the case may be framed as a battery (an intentional tort). For instance, operating on a patient who refused the procedure, or doing a surgery on an organ that was not consented for, can be battery. Battery does not require proving what a reasonable patient would do it centers on the fact that the patient did not agree at all to what was done. However, if some consent was given but it wasn’t fully informed, the case is typically treated as negligence rather than battery.
Both theories allow the patient to recover damages for the harm suffered, but most often, lack of informed consent is pled as a form of medical negligence. This means it must go through the same procedural hurdles as other malpractice claims in Florida (pre suit notice, expert review, etc., discussed below).
Lack of informed consent often appears as a secondary allegation in malpractice lawsuits for example, a patient might sue for surgical negligence and allege that the surgeon also failed to warn of certain risks. Even if the surgical technique was acceptable, the lack of proper consent can be a standalone basis for liability.
It’s also worth noting that informed consent is not a waiver of all liability for the doctor. When you sign a consent form acknowledging certain risks, you are generally agreeing that you understand those risks and won’t hold the doctor responsible for those complications if they occur. However, the doctor can still be liable for other forms of negligence or for complications resulting from mistakes that were not covered by the consent.
For example, if a surgeon obtains informed consent for a gallbladder surgery (including warning of bleeding or infection risks), that consent does not shield the surgeon from a lawsuit if they leave a surgical instrument inside the patient or operate on the wrong body part those are negligent errors outside the scope of any consent.
Likewise, consenting to a treatment doesn’t mean you consented to negligent care in how that treatment is delivered. In summary, a lack of informed consent can make an otherwise proper medical treatment legally actionable. Florida patients have a legal right to be informed, and if being kept in the dark leads to harm, the law provides a remedy.
Common Situations Where Informed Consent Issues Arise
Certain types of medical procedures more frequently give rise to informed consent disputes, often because they carry significant risks or involve complex choices. Florida malpractice cases have seen lack of consent claims most commonly in the following scenarios:
Surgery:
Surgical procedures of all kinds (from major operations to minor outpatient surgeries) require thorough consent. Patients should be informed about risks like bleeding, infection, damage to surrounding organs, anesthesia complications, etc. Lack of informed consent claims often occur in surgeries where a known complication happens but the patient says, “I was never told that could happen.” This can range from elective surgeries (e.g. cosmetic surgery) to emergency surgeries, and includes OB-GYN surgeries like C sections or hysterectomies where specific risks (such as fertility impact or surgical injuries) might not have been explained. In Florida, any surgical intervention should come with a detailed discussion beforehand.
Anesthesia:
Before administering anesthesia (general, regional, or even deep sedation), anesthesiologists must obtain consent. They should explain risks like allergic reactions, breathing difficulties, brain damage, or even death (though rare). Many patients sign anesthesia consent forms on the day of surgery. Claims can arise if a complication like anesthesia awareness or nerve injury occurs and the patient alleges they were not warned. Given the potential severity of anesthesia risks, informed consent here is critical.
Childbirth and OB/GYN procedures:
Obstetric procedures (like inductions of labor, forceps deliveries, C sections, episiotomies) and gynecological treatments (like tubal ligation, abortions, fertility treatments) often carry consent issues. In the heat of childbirth, interventions might happen quickly. However, except in true emergencies, mothers should be informed of options and risks (for example, the risks of a VBAC vs. repeat C section, or the implications of a certain birth assist procedure). If a mother or patient feels a procedure was done that she didn’t agree to or wasn’t fully informed about (e.g. a surgical intervention during birth), it can lead to a claim. Language barriers and high stress moments are particular concerns in OB/GYN settings for consent.
Experimental treatments and clinical trials:
When patients participate in clinical research or receive a novel treatment, the consent process is typically lengthy. Patients must be informed that a treatment is experimental, any unknown risks, and that they can withdraw. Despite rigorous standards, failures still occur for instance, if a patient isn’t told they might only be receiving a placebo, or a new drug’s full risk profile isn’t disclosed. Clinical trial consent forms are often long, but the key is that the patient truly understands the uncertainty and potential hazards. Lack of informed consent in research can also violate federal rules, but as a malpractice claim it arises if the patient suffers an adverse outcome that was not adequately explained beforehand.
Invasive diagnostic procedures:
Tests and diagnostic interventions that are invasive (penetrating the body) typically require consent. Examples include biopsies, colonoscopies, endoscopies, cardiac catheterizations, lumbar punctures, and so on. These procedures have risks (perforation of an organ, bleeding, infection, etc.) that patients might not anticipate without being told. Florida cases have cited scenarios like colonoscopy perforations or biopsy complications where patients alleged they were not warned of those risks. Even certain injections for example, epidural steroid injections, or other invasive treatments like spinal taps need informed consent about possible side effects (nerve injury, etc.).
High risk medications and therapies:
Some treatments, while not surgical, carry serious risks that must be explained. For instance, chemotherapy and radiation therapy (risk of severe side effects, secondary cancers, etc.), or medications like blood thinners (risk of hemorrhage) or opioids (risk of addiction). If a physician fails to counsel a patient on these dangers and the patient suffers harm (like a major bleed on a blood thinner they weren’t cautioned about), it could become an informed consent issue. Patients should be apprised of what to watch for and alternative treatments if applicable.
These are just examples. In general, the more serious or invasive the procedure, the more crucial the informed consent process. Florida law doesn’t list specific procedures requiring consent, but as a rule of thumb, any procedure beyond a simple, routine exam should involve some level of explanation and consent. (Routine, low risk activities like checking blood pressure or drawing blood are usually covered by implied consent in the course of care.)
If you undergo a procedure and experience a bad outcome that you were never warned about, that scenario is the breeding ground for a lack of informed consent claim. Remember, the strength of such a claim will often hinge on documentation. Hospitals and clinics in Florida typically have patients sign detailed consent forms, listing risks and alternatives.
These forms can be evidence that certain risks were disclosed. However, even a signed form can be overcome by testimony that the patient didn’t actually understand or that the discussion was insufficient for example, if the form was given to a patient who doesn’t read English, or the risks were glossed over verbally. Ultimately, it’s the quality of the communication that matters, not just the paperwork.
Proving a Lack of Informed Consent Claim in Florida
From a legal standpoint, a patient alleging lack of informed consent in Florida must prove several key elements to succeed in a medical malpractice claim. These elements establish the duty, breach, causation, and harm related to informed consent:
Duty to Disclose Existence of a Provider Patient Relationship:
The doctor or healthcare provider had a duty to inform the patient about the procedure. This is usually straightforward if a provider is treating a patient, they owe that patient the duty of obtaining informed consent (except in emergencies). Florida law specifically imposes this duty on physicians and certain other practitioners for any non emergency treatment or surgery. Part of this duty is to disclose all material risks and alternatives that a typical practitioner would disclose under similar circumstances. Expert testimony is often used to establish what risks or alternatives a reasonable practitioner would have disclosed.
Breach of Duty Inadequate Disclosure:
The patient must show that the provider failed to provide the necessary information. This could mean they omitted a key risk, didn’t mention an alternative treatment, or otherwise fell short of the standard for disclosure. Common examples of breach include not mentioning a known complication, minimizing a risk that did occur, or failing to properly translate/explain information to the patient. Evidence for this might come from the patient’s testimony (“the doctor never told me about X risk”), inconsistencies in the consent form, or expert opinions that the typical physician would have disclosed that risk. If a consent form exists, what’s written (or not written) on it can be crucial. A blank or overly general consent form can support the claim that specifics were never discussed. Proving a breach often requires comparing what was actually conveyed to what should have been conveyed under the circumstances.
Causation Different Decision with Full Information:
This element is unique to informed consent cases. The patient must establish that with proper information, they would have made a different choice typically, that they would have declined the procedure or chosen a less risky alternative. Florida applies a “reasonable patient” standard for causation in informed consent. This means the question is often phrased as: Would a reasonable person in the patient’s position, if adequately informed of the risks and alternatives, have likely refused the procedure or chosen differently? If the answer is yes, then the lack of disclosure is considered a cause of the patient’s injury (because an informed patient would have avoided that outcome).
The patient’s own testimony can address what they personally would have done (e.g., “Had I known there was a safer non surgical option, I would never have agreed to surgery”), but courts often consider the hypothetical reasonable patient. This prevents overly subjective outcomes. The defense, conversely, may argue (and try to prove) that even with full disclosure, a reasonable patient would have accepted the risk and gone ahead which echoes the statutory defense in Fla. Stat. 766.103(3)(b).
Causation is frequently a battleground:
If the procedure was truly necessary or the alternatives also had serious downsides, juries might find that a reasonable person would choose the procedure despite the risk. On the other hand, if an undisclosed risk was particularly severe or an alternative was much safer, it’s easier to say proper disclosure would have changed the decision.
Injury/Damages Harm from the Undisclosed Risk:
Finally, the patient must have suffered an injury or adverse outcome that is linked to the risk that wasn’t disclosed. In other words, the feared complication actually happened, and that’s what caused the patient’s damages (pain, additional medical bills, lost work, etc.). If a doctor failed to warn of a risk but the patient never experienced that risk (and had no other harm), there’s essentially no damages to claim. For example, if a surgeon didn’t mention a 5% risk of nerve damage, but the surgery went fine and the patient has no nerve injury, then even though consent was theoretically not fully informed, the patient hasn’t been harmed by that failure. Typically, lack of informed consent cases involve a scenario where the undisclosed risk materialized and caused harm to the patient.
The patient must connect the dots:
“Doctor didn’t tell me about X risk. X happened, and it caused me Y injury.” If the injury is something that likely would not have deterred a reasonable patient even if disclosed (for instance, a very minor complication), the case might be weak on both causation and damages. However, if it’s a serious injury (e.g., paralysis from a surgery, stroke from a procedure) that was a known risk and wasn’t disclosed, that strongly supports damages and the significance of the information.
To prove these elements in a Florida court, typically expert testimony is required. A medical expert (often in the same specialty as the defendant) can testify about what the standard practice is for disclosing risks for that procedure establishing duty and breach. They may also testify that the risk which occurred was known and significant. In some cases, an expert might testify that the procedure wasn’t urgent and a reasonable patient could have waited or chosen an alternative, supporting the causation argument that a different decision was possible.
Florida law generally mandates expert involvement in medical malpractice cases to prevent frivolous claims; lack of informed consent cases are no exception. Documentation and evidence play a big role. Florida’s statute gives weight to written consent forms if a properly worded consent form was signed, it’s hard (but not impossible) for a patient to claim they weren’t informed. The patient can rebut by showing they didn’t understand the form or it wasn’t explained.
Conversely, if there is no signed consent form for a procedure that should have one, that alone is strong evidence of lack of consent. In summary, to win a lack of informed consent claim in Florida, a patient must show the doctor didn’t tell them something important, that if they had known they likely would have declined or chosen differently, and that they were hurt by the very thing they weren’t told.
It’s a nuanced claim that combines medical evidence with the patient’s perspective and a “what if” analysis of decision making.
The Legal Process in Florida for Pursuing a Claim
Bringing a medical malpractice claim for lack of informed consent in Florida involves a specific legal process with several steps and requirements. Florida has some of the strictest pre suit procedures for medical malpractice in the country, designed to filter out non meritorious cases before they reach court. If you believe you’ve been harmed by a lack of informed consent, here’s an overview of how a claim is pursued:
Pre Suit Investigation and Expert Review:
Before you can file a lawsuit, Florida law (Chapter 766, Florida Statutes) requires that you conduct a pre suit investigation of your claim. This includes obtaining a qualified medical expert’s opinion that your case has merit. You’ll need to find a medical professional (usually another doctor in the same field) who, after reviewing your medical records, is willing to sign an affidavit or verified statement saying that the defendant healthcare provider failed to meet the standard of care in obtaining informed consent and that this failure caused your injury. This step is essentially a certification that a legitimate expert believes your claim is valid. Without this expert corroboration, you cannot proceed the case will be barred. The expert’s written opinion must specifically support your allegation that material risks were not disclosed in accordance with good practice and that harm resulted.
Notice of Intent to Sue:
Once you have the expert support, your attorney will serve a Notice of Intent to Initiate Litigation on each potential defendant (e.g., the doctor, hospital, etc.). This is a formal letter that outlines the basis of your claim and is accompanied by the aforementioned expert affidavit. The notice will describe what the doctor did wrong (e.g., “Dr. X failed to inform Patient of [specific risk or alternative], thereby breaching the prevailing standard of care, and as a result Patient suffered [injury].”) and the injuries suffered. Serving this notice triggers a mandatory 90 day pre suit period under Florida law.
90 Day Pre Suit Period (Investigation & Response):
After the notice is served, there is a 90 day window where the claim is essentially on hold to allow the defendants to investigate and decide how to respond. During this period, the statute of limitations is tolled (paused). The insurance company or risk management for the doctor/hospital will typically review the claim, possibly request more information or perform informal discovery (like taking statements or procuring their own expert reviews).
Settlement negotiations or mediation can happen in this window as well, as the law encourages resolving claims without full litigation if possible. By the end of 90 days, each defendant must respond in writing with one of three responses: 1) Reject the claim (deny liability), 2) Offer to settle (a monetary offer), or 3) Offer to admit liability and arbitrate damages. If they reject or if no satisfactory resolution is reached, you are then free to file the lawsuit in court after the 90 days.
Filing the Lawsuit:
If the pre suit phase doesn’t end in a settlement, you can file a formal Complaint in the appropriate Florida court. The complaint will state your allegations of negligence (lack of informed consent) and the damages you seek. From here, the case proceeds like a typical civil lawsuit: defendants file answers, and both sides engage in discovery (exchanging documents, taking depositions, etc.). Each side will retain experts who will eventually testify whether the doctor’s conduct was or wasn’t proper. In an informed consent case, expert witnesses might include not just the standard of care expert (to say what a reasonable doctor should disclose) but also possibly an expert to speak on how common or serious the risk was (to underline its materiality).
Continuation of Expert Involvement:
Florida law also requires that, by the time of trial, you have an expert witness testify to support your claims of negligence. In an informed consent trial, you would typically present a medical expert to say something like: “Dr. X departed from the standard of care by failing to inform Patient of Y risk or alternative.
A reasonably prudent physician would have disclosed that. Had Patient known, a reasonable patient might have chosen a different course.” The defense, in turn, might have an expert say the opposite (e.g., “I believe Dr. X’s disclosures were appropriate and in line with what other doctors do. And even if Patient had known Y, it was such a small risk that it wouldn’t reasonably change the decision.”).
Ultimately, a jury would decide if there was a lack of informed consent based on all the evidence and testimony.
Statute of Limitations:
It’s important to be mindful of Florida’s time limits for medical malpractice claims. Generally, you have two years from when you knew or should have known of the possible malpractice (in this case, two years from when you were harmed and realized you weren’t informed) to initiate a claim, and no more than four years from the date of the incident in any case (with a few exceptions for fraud or minors).
The pre suit process can consume some of this time, so it’s crucial not to delay if you suspect a lack of informed consent. Failing to meet the deadlines or any of the pre suit steps can result in your case being dismissed, no matter how valid the underlying issue.
During Litigation proving the case:
In court, a lack of informed consent claim can be somewhat complex for jurors, because it involves a hypothetical: would the patient have refused if told? Florida’s standard jury instructions on informed consent (if given) will reflect the need to decide if the physician gave enough information and, if not, whether a reasonable patient in the plaintiff’s position would have declined the procedure and thus avoided injury.
Jurors will hear the patient’s story, possibly family members (e.g., a spouse testifying “We asked if there were other options and were told no”), the doctors, and the experts. Medical records and consent forms are critical pieces of evidence. If the form clearly lists the complication that occurred, the defense will hammer that point (“you were informed it’s right here on what you signed”).
The plaintiff will emphasize any gaps or ambiguity (“I signed that form but the doctor never discussed these risks with me in person, I didn’t actually read every word in a rushed environment,” etc.).
Resolution:
The claim might resolve at any stage during the 90 day pre suit (if the provider offers a settlement), during discovery (sometimes evidence that is uncovered can motivate settlement), or it may go all the way to a trial verdict. If the plaintiff prevails, they may recover compensatory damages for things like additional medical expenses, lost income, pain and suffering, etc., resulting from the harm caused by the undisclosed risk. In rare cases of egregious misconduct, punitive damages could be sought, but those are uncommon in informed consent cases unless there was willful concealment.
Navigating this process can be challenging. Florida’s pre suit requirements are technical, and missing a step can end the case before it begins. That’s why anyone considering a medical malpractice claim including one for lack of informed consent is strongly advised to consult with an experienced Florida malpractice attorney. The attorney can help secure the necessary expert review and guide the claim through the pre suit procedure and beyond. While this article focuses on information and education (not legal advice), being aware of the process and requirements can help patients understand what pursuing such a claim entails.
How Lack of Informed Consent Claims Differ from Other Negligence Claims
It’s useful to distinguish a lack of informed consent claim from other types of medical negligence or malpractice claims (like misdiagnosis or surgical error), as they involve different duties and evidence:
Nature of the Wrong:
In a standard medical negligence case, the allegation is that the healthcare provider did something wrong in treatment for example, misdiagnosed a condition, made a surgical mistake, or provided substandard care that directly caused injury. The focus is on the quality of the care given.
In a lack of informed consent case, by contrast, the allegation is that the provider failed to give adequate information before obtaining the patient’s agreement. The focus is on the communication and decision making process, not the technical execution of the procedure. A doctor could perform a procedure flawlessly from a technical standpoint and still be negligent if they didn’t properly inform the patient beforehand.
Standard of Care Differences:
For treatment decisions and diagnoses, the standard of care is what a reasonably competent physician would have done (e.g., ordering certain tests, performing surgery in a certain manner).
For informed consent, the standard of care involves what a reasonably prudent physician would disclose and how they would obtain consent, combined with what a reasonable patient would need to hear. Both still usually require expert testimony, but the informed consent standard explicitly merges professional norms with patient centered expectations.
Injury vs. Autonomy:
Lack of informed consent claims straddle a line between physical injury and violation of patient autonomy. The harm in these cases is often twofold: the physical injury from the complication and the injury of being deprived of an informed choice. In pure treatment negligence cases, the harm is typically directly physical (and economic) from the doctor’s poor performance or decision.
This is why even if a complication was a known risk (and not due to any technical error by the doctor), a patient can still sue under informed consent if they can say, “I would have avoided this injury had I been told about the risk.” In other words, the causation is decision based rather than performance based.
Consent as a Defense in Negligence Cases:
In a regular malpractice case (say, a surgical error), the fact that a patient signed a consent form acknowledging risks generally does not excuse actual negligence. Consent forms usually state that you understand even if everything is done right, certain bad outcomes can happen. They do not give a doctor permission to be careless.
So if a doctor clearly breached the standard of care (e.g., operated on the wrong body part or misread a test leading to harm), it’s not a defense that the patient “consented” to treatment because patients never consent to negligence. On the flip side, in an informed consent claim, the existence of a signed detailed consent form is a major defense point (as it suggests the patient was informed).
Thus, the role of the consent form/evidence is different: it’s central in an informed consent claim, but relatively peripheral in a typical negligence claim except to ward off any argument that the complication was unknown.
Overlap of Claims:
Sometimes a medical injury involves both types of claims. For example, consider a surgery that had a bad outcome. If the bad outcome occurred because the doctor operated improperly, that’s a direct negligence claim. If, in addition, the patient says “I was not warned that this outcome was a risk,” that’s an informed consent claim.
The patient could potentially assert both: the doctor was negligent in causing my injury and even if it wasn’t negligence, I wasn’t told this could happen and I wouldn’t have agreed if I had known. These are alternative theories. Florida law requires each theory to be proven on its own merits. The success of one may not depend on the other a jury could find that the complication was a known risk (so no negligence in how the doctor performed) but still find the doctor liable for not informing the patient of that risk.
Or vice versa: they might find the doctor did inform adequately (so no consent claim), but the injury happened due to a breach of surgical technique (so malpractice on that ground).
Outcome even with Consent:
If a patient did give informed consent, can they still sue for malpractice? Yes if the allegation is about substandard care, not the consent. Informed consent is not a blanket waiver of all liability. For example, if you consent to a cardiac surgery and one known risk (disclosed) is that you might have a heart attack during the procedure, you generally couldn’t sue just because that risk came true if it was not due to error.
But if the surgeon actually made a mistake that caused the heart attack, consent doesn’t protect them. Conversely, if a doctor obtained consent impeccably but made no actual mistake, and a rare complication happened that was disclosed, then the patient typically has no claim at all because the whole point of informed consent is that you understood and accepted that risk. In short, negligence claims focus on preventable errors, while informed consent claims focus on undisclosed outcomes.
To illustrate the difference: Suppose a patient is considering a procedure that has a 10% risk of a serious complication.
Scenario A: The doctor tells the patient about the risk, and the patient consents. The doctor then performs the procedure negligently, causing that complication unnecessarily. This is a straightforward negligence case (the patient knew the risk, but it should not have happened if the doctor had been careful).
Scenario B: The doctor does not tell the patient about the 10% risk. The doctor performs the procedure perfectly (no technical mistakes), but unfortunately the patient falls into that 10% and suffers the complication. Here, the only fault is the lack of warning the patient might have refused the procedure had they known about even a 10% chance of this outcome. That’s a pure lack of informed consent case.
Scenario C: The doctor neither discloses the risk nor performs perfectly (they were negligent). The patient has the complication. The patient could then allege both that the doctor’s negligence caused it and that they weren’t informed of the risk in any case. The lawsuit might have two counts: one for negligence, one for informed consent.
Understanding these differences helps patients and practitioners alike to recognize what a particular claim is really about. Lack of informed consent is about respecting the patient’s right to know and choose, whereas other malpractice claims are about meeting standards of medical care. Both are important for patient safety and trust. Florida law allows patients to seek recourse in either situation: if you were harmed by a medical error, or if you were harmed by a known risk you were never told about.
Conclusion
In Florida, informed consent is not just a medical formality it’s a fundamental patient right supported by state law. Doctors and healthcare providers are expected to give patients the information they need to make educated choices. When they fail to do so and a patient is injured by something they were not warned of, the patient may have grounds for a medical malpractice claim based on lack of informed consent.
These cases require showing that important information was withheld and that the patient suffered as a result, often involving expert testimony and a careful legal process. If you believe you or a loved one underwent a procedure without proper informed consent and were harmed, you should know that Florida’s laws are designed to protect patients in your situation.
Because of the complex pre suit requirements and the need to prove what “should have been” discussed, seeking legal advice early is wise. An attorney can help evaluate whether the consent you gave meets Florida’s standards and guide you through the steps needed to pursue a claim.
Ultimately, the doctrine of informed consent empowers patients and holding healthcare providers accountable for lapses in that process helps ensure that future patients receive the thorough information and respect they deserve before making critical health decisions.
Attorney Bio: Jorge L. Flores, Florida Bar No. 53244, has been representing families in Miami Dade for over 30 years.
Disclaimer: This overview is general information, not legal advice. Deadlines and procedures can change based on facts and parties. For guidance on your specific situation, contact a Florida medical malpractice attorney.