California First-Year Law Students' Exam (Baby Bar) — MCTortsHard
A patient underwent a routine medical procedure. Before the procedure, the doctor explained the general nature of the surgery and its common risks, and the patient signed a consent form. However, the doctor failed to inform the patient about a very rare but severe complication that, had the patient known, they would have declined the procedure. The complication occurred. The patient sued the doctor. Which legal theory is most appropriate for the patient's claim?
- ABattery, because the doctor performed a procedure without full consent.
- BStrict liability, because a severe complication occurred during a medical procedure.
- CMedical malpractice (negligence), based on lack of informed consent.
- DBattery, because the patient did not give informed consent.
Show answer & explanationAnswer & explanation
Correct answer: C. Medical malpractice (negligence), based on lack of informed consent.
In most jurisdictions, a claim for lack of informed consent is treated as a form of medical malpractice (negligence). The doctor's failure to disclose a material risk falls below the professional standard of care, rather than negating consent entirely for a battery claim, especially when the general nature of the procedure was agreed upon.
Why the other options are wrong
- A. This is incorrect for the same reason as A; the patient consented to the procedure, but the consent was not fully informed regarding all material risks.
- B. Strict liability does not generally apply to medical procedures; liability is typically based on fault (negligence) or intentional torts (battery).
- D. Battery typically applies when there is no consent at all, or the procedure performed is substantially different from the one consented to. Here, the patient consented to the general procedure, but the consent was 'uninformed.'
Informed Consent (Medical Negligence)
The doctrine that a physician has a duty to disclose material risks of a proposed treatment to a patient, and failure to do so, leading to harm, is typically treated as medical malpractice (negligence).
- Physician's duty to disclose material risks.
- Patient must be able to make an informed decision.
- Failure to disclose is a breach of duty.
- Usually a negligence claim, not battery, if consent to general procedure was given.
Memory trick: If you touch without permission, it's battery; if you fail to tell, it's negligence.