Informed Consent

In many situations, the failure to obtain a patient's "informed consent" relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.

Breach of Contract or Warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Problems of Proof: The "Res Ipsa" Doctrine

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.