How informed are you?

Many medical negligence cases come with an additional layer. On one hand, there is the alleged negligence itself, on the other – the matter of the patient’s consent to be treated, and in particular, whether the consent was informed.

Under Polish law, the rule is that a physician may provide healthcare services only upon obtaining the patient’s consent. There are some exceptions to this rule, but they concern the most extreme circumstances, such as situations where the patient requires immediate medical assistance, and due to his or her age or state of health, is incapable of giving consent, and also when it is not possible to reach their statutory representative or guardian.

Polish law distinguishes between two different forms in which consent may be provided, that is: in writing, and in any other form (most often oral). The rule is that consent may, in general, be given in any form, however consent in writing is required in cases where the treatment in question is a surgery – any kind of surgery – or if the planned treatment or diagnostics carries with it a heightened risk for the patient.

The duty to obtain consent in the appropriate form, and the burden of proof that the consent was obtained, rests upon the provider of healthcare services, which is of significance when it comes to court disputes.

Just obtaining consent, even in the appropriate form, will often not be enough, though. Under law, each physician is obliged to provide the patient with information pertaining to:

• the state of the patient’s health;
• the diagnosis;
• the proposed and possible therapeutic and diagnostic methods, as well as foreseeable consequences of applying these methods, or of abstaining from applying these methods;
• the results of treatment;
• the prognosis.

In situations where consent in writing is required, that is when the treatment in question is a surgery, or if the treatment or diagnostics carries with it a heightened risk for the patient, all of this information has to be provided to the patient prior to obtaining their consent – of course, as far as possible.

It is widely accepted that the physician is not obliged to inform the patient about each and every possible complication that can be associated with a particular medical procedure. Instead, the standard is that the patient has to be informed about the most common complications, as well as the most threatening ones (even if they are fairly rare).

At the same time, the type of the planned medical procedure, and also the circumstances in which treatment is to be provided, are also an important factor in respect of the scope of information that the patient should receive. The scope of required information is not universal, and will not always be identical, even in regard to one and the same, specific procedure.

The Supreme Court of Poland has pointed out that the degree of information that should be provided to the patient prior to obtaining consent will be different if the planned treatment is performed in order to save the patient’s life, in which case it is sufficient to inform the patient only of the typical negative consequences and complications of a given medical procedure (or even sometimes to not give any information). However, if treatment is provided without any absolute and pressing indications, and in particular if it would also be reasonable and justified to abstain from that specific treatment altogether in the patient’s condition and circumstances, then the duty to inform the patient is considered to be much more wide, and the information should be much more detailed (judgment of the Supreme Court of Poland of 26 April 2007, case citation II CSK 2/07).

Why is this important? As the Supreme Court of Poland pointed out, providing healthcare services without prior informed consent may lead to liability on part of the provider for all consequences of said services, even in the absence of negligence.

In addition, providing healthcare services without prior informed consent is in itself considered a separate delict under Polish law, in the form of an infringement of the patient’s rights to information about their state of health, and the right to decide the course of their treatment – which may lead to a separate award, solely as compenstation for such infringement.

Hopefully this post has been informative!