Informed Consent Guide for Medical Treatment

What is Informed Consent in Medical Treatment?

Informed consent is a conscious and deliberate agreement by a patient to receive a specific medical treatment, after receiving full and clear information from the physician or medical team regarding the nature of the treatment, its objectives, inherent risks, possible side effects, available alternatives, and possible consequences of refusing the treatment. This is a basic right of every patient and the legal foundation for any medical intervention on a person's body.

In Israel, this right is anchored in the Patient's Rights Law, in landmark rulings of the courts, and in basic ethical principles of medicine. Any medical treatment provided without the informed consent of the patient (or of someone authorized to decide on their behalf) may constitute a violation of patient rights and can form the basis for an informed consent claim.

The purpose of this guide is to clearly explain the concepts, procedures, and legal rights related to informed consent in medical treatment, and to guide you regarding your rights as patients and the legal options available in case of absence of informed consent or its violation.

Why is Informed Consent Important?

Informed consent serves as a vital legal and regulatory safeguard on three main levels:

• Respect for Patient Autonomy: Every person is entitled to control their body and decide what shall be done to them. Treatment provided without consent is a violation of human dignity and personal autonomy.
• Legal Protection: Informed consent provides legal protection to the physician or hospital against civil lawsuits regarding the treatment itself, when it is provided in accordance with accepted medical guidelines.
• Basis for Liability: If treatment was provided without informed consent, or if vital information was not conveyed, the patient may file a claim for violation of their rights and seek monetary compensation for the damage caused.

What Must a Proper Informed Consent Process Include?

A proper informed consent process must contain several essential components, each of which is a necessary condition:

• Provision of Full Information: The physician must explain in simple and understandable language (not technical medical jargon) the nature of the treatment, its purpose, the precise procedure, known risks (even if rare), possible side effects, the success rate of the treatment in similar circumstances, and available medical alternatives.
• Understanding of the Information: It is not sufficient that the physician conveyed information; the patient must understand it. If the patient does not understand, the physician must explain again in different ways, and if necessary with the help of an interpreter or written materials.
• Time to Think: The patient is entitled to reasonable time to think about the decision, ask questions, and consult with family members or a second physician in complex cases. Urgent or emergency treatment may justify shortening this time, but even then efforts should be made to find time and explain.
• Free and Voluntary Consent: The patient's decision must be theirs, without coercion, pressure, fraud, or exploitation of a state of weakness. The patient is entitled to refuse treatment, even if the physician believes the treatment is beneficial for them.
• Documentation: It is preferable that the consent be in writing (signed form) or at least there be a record in the medical file regarding the information conveyed and the consent given. Such documentation serves as evidence in case of dispute.

Who Can Give Informed Consent?

Generally, the patient themselves is the one who gives informed consent, as long as they have the capacity to make decisions (competence) and are of sound mind. However, there are cases where another person is authorized to give consent on behalf of the patient:

• Minors: Generally, a minor's parents or guardian are those who give consent on their behalf. However, if the minor is of an age where they can understand the significance of the treatment (usually from age 12 onwards), efforts should be made to obtain their consent as well.
• A Person Lacking Decision-Making Capacity: If the patient is unable to understand information or make decisions (due to dementia, loss of consciousness, mental incapacity, or other medical condition), their guardian, rights advocate, or close family member (according to law) may give consent on their behalf.
• Advance Directive: A person who has executed an advance directive may transfer authority to make medical decisions to another person in case they lose decision-making capacity.

What Happens When There is an Absence of Informed Consent?

Absence of informed consent is a serious situation in which the physician or hospital performed medical treatment without proper consent from the patient (or from someone authorized to decide on their behalf). This may occur in several scenarios:

• The Physician Did Not Provide Sufficient Information: The physician performed the treatment without explaining to the patient the risks or alternatives, or provided partial and misleading information.
• The Patient Refused and the Treatment Was Performed Anyway: The patient clearly expressed their refusal, but the physician ignored it and performed the treatment.
• There Was No Consent at All: The treatment was performed without any conversation with the patient or without an attempt to obtain consent.
• Consent Under Pressure or Fraud: The patient was forced or deceived into consenting under psychological pressure, threats, or manipulation.

In all of these cases, the patient may file an informed consent claim against the physician, hospital, or health insurance fund.

Informed Consent Claim — What It Is and How It Works

An informed consent claim is a civil lawsuit filed by a patient against a doctor or hospital, alleging that they performed medical treatment without proper informed consent. This is a tort law claim, and the patient (plaintiff) must prove that:

• The doctor or hospital failed to provide vital information;
• The patient did not consent to the treatment (or consented under pressure or based on misleading information);
• As a result of the treatment, the patient suffered damage (physical, psychological, financial, or other).

Unlike a standard medical malpractice claim, an informed consent claim does not require proving that the doctor made an error or that the treatment was unprofessional. It is sufficient that proper informed consent was not obtained. In other words, even if the treatment was performed in an exemplary professional manner, the patient may sue if they did not receive consent.

In an informed consent claim, the essence of the lawsuit is the patient's right to control their body and make decisions about their medical matters. This is a claim of principle and dignity, not merely of professional error.

How Is the Absence of Informed Consent Proven?

Proving the absence of informed consent can be done in several ways:

• Testimony of the patient and family members: Strong evidence that the patient did not receive information, received partial information, or did not understand.
• Medical file: Review of medical documentation may show that consent was not recorded, or the documentation does not detail the information that was provided.
• Expert medical testimony: Typically, the plaintiff presents testimony from an experienced physician in this field (expert), who testifies that the information that should have been provided was not, or that the treatment was not urgent enough to justify the lack of consent.
• Standard medical practice: In an informed consent claim, the standard of a "reasonable physician" is applied — that is, would a reasonable physician with similar experience have provided this information? Would a reasonable physician have waited for consent?

What Damages Can Be Claimed in an Informed Consent Lawsuit?

In an informed consent claim, the patient may claim compensation for several types of damages:

• Physical damages: Pain, suffering, impairment to health, loss of earning capacity, additional medical expenses resulting from the treatment.
• Psychological damages: Fear, anxiety, mental distress, loss of quality of life.
• Financial damages: Medical expenses, loss of income due to inability to work, additional treatment costs.
• Damages to honor and self-esteem: In informed consent claims, courts recognize damages to human dignity due to the violation of autonomy, even if there was no direct physical harm.

The amount of compensation depends on the severity of the violation, the extent of the damage, the impact on the patient's life, and the circumstances of the case. Each case is examined individually by the court.

Exceptions and Emergency Cases

There are cases in which a doctor may perform treatment without prior informed consent:

• Emergency situation: If the patient is in immediate danger to life or health, and delay in obtaining consent could lead to serious harm, the doctor may perform the treatment. Subsequently, when the patient regains decision-making capacity, they should be informed of what was done and why.
• A person who has lost consciousness: If the patient is unable to give consent (unconscious, under anesthesia), the doctor may perform necessary treatment on the assumption that the patient would have consented had they been able to do so.
• Rights of children: In treating children, parents give consent, but usually the doctor also attempts to obtain consent from the child in accordance with their age and understanding.

Nevertheless, even in these exceptions, the doctor must endeavor to explain and obtain consent when possible, and must document the circumstances that justified the absence of consent.

Examples of Informed Consent Cases — Legal Scenarios

Below are several common scenarios in which an informed consent issue may arise:

Scenario 1: Surgical Procedure That Was Not Properly Explained

A patient came for an examination due to knee pain. The doctor recommended surgery to repair damaged cartilage. The patient did not receive a full explanation of the risks (infection, bleeding, shoulder dislocation), did not hear about alternative conservative treatments (physical therapy, medication), and was not given time to think. The surgery was performed, and now the patient suffers from chronic pain. In this scenario, there is a basis for an informed consent claim, even if the surgery was performed professionally.

Scenario 2: Treatment That Was Not Agreed To At All

A woman came for an examination because she suspected she had cancer. The doctor decided to perform a biopsy (tissue sampling) without asking for consent, claiming it was "simple and urgent." The woman did not know the biopsy would be performed until the doctor had already started. In this scenario, there is definitely a violation of informed consent, and it could form the basis for a strong claim.

Scenario 3: Consent Under Pressure

A doctor told a patient: "If you don't have the surgery today, you could die within a week." The patient, frightened and under pressure, signed a consent form. Later it was discovered that the diagnosis was misleading, and there was no actual life-threatening danger. In this scenario, the consent was not freely given, and it could form the basis for a claim.

Scenario 4: A Child Who Was Not Given an Explanation

A 14-year-old came for an examination due to headaches. The doctor decided to give him medication without explanation and did not ask the child or his parents about allergies or medications he was already taking. The child had a severe allergic reaction. In this scenario, not only was consent not obtained, but a safety check was also not performed. This could form the basis for a strong claim.

Scenario 5: Misleading Consent

A doctor told a patient that a certain medication was "completely safe" and that "there are no side effects." The patient consented based on this. Later, the patient suffered severe side effects. Review of medical literature shows that these side effects are known and common. In this scenario, the information provided by the doctor was misleading, and it could form the basis for a claim.

How Mandelbaum, Gor, Witzman-Gor & Co. Can Help You

Mandelbaum, Gor, Witzman-Gor & Co. is a boutique family law firm with over 18 years of experience representing plaintiffs in tort claims, including informed consent claims and medical malpractice cases. We are located in Ramat Gan and also in Petah Tikva, and we are at your service.

In informed consent claims, we understand the complexities of both legal and medical matters. We know how to gather evidence, how to work with medical experts, how to present your case before the court, and how to negotiate with hospitals and insurance funds. We are dedicated to representing plaintiffs exclusively, meaning we work for you and only for you, without any conflict of interest.

We offer a free initial consultation meeting, during which we can listen to your story, briefly analyze your case, explain your rights, and advise you on the next steps. You will have no obligation at this meeting.

Our Work Process

When you contact us regarding an informed consent claim, our process is as follows:

1. Initial Consultation Meeting: We listen to your story, we ask detailed questions, we understand the circumstances. We explain your rights and the possible ways to protect them.
2. Evidence Collection: We request the complete medical file from the hospital or physician, treatment documentation, test results, and medical photographs if available. We also collect testimonies from family members and other witnesses.
3. Legal Assessment: We examine the evidence, we review the relevant law, we evaluate the prospects of the claim.
4. Retention of Medical Expert: We engage an experienced medical expert in the relevant field, who will review the medical file and testify regarding the standards of accepted medical practice and any deviation from them.
5. Negotiation: We conduct negotiations with the hospital, physician, or insurance fund, with the aim of reaching a financial settlement without the need for litigation.
6. Filing a Claim: If negotiation is unsuccessful, we file a claim with the competent court, we manage the proceedings, we represent you at hearings, and we pursue the case until its conclusion.

Why Choose Mandelbaum, Gor, Witzman-Gor & Co.?

• Over 18 Years of Experience: Our firm was founded in 2008 by Attorney Keren Mandelbaum, and since then we have successfully represented plaintiffs in tort claims.
• Plaintiff Representation Only: We work for plaintiffs exclusively, without any conflict of interest. We do not represent hospitals, physicians, or insurance funds.
• Personal and Dedicated Approach: We believe in a personal relationship with our clients. Every case is important to us, and we are dedicated to representing you.
• Free Consultation: The initial consultation meeting is free of charge. We want to get to know you and understand your case before any commitment.
• Convenient Location: We are located in Ramat Gan and also in Petah Tikva, so you can reach us conveniently.