Florida laws are designed to promote patient involvement in the medical decisionmaking process. The provision of informed consent is governed by chapter 766.103, Florida Statutes, the “Florida Medical Consent Law.”

 

Briefly, 766.103 mandates that doctors provide “a reasonable individual” with a general understanding of the procedure, alternatives to the procedure, and the substantial risks of the procedure. In exchange, the statute protects the provider from a lawsuit claiming lack of informed consent when these criteria are met. A written consent bearing a valid signature of the patient creates the presumption of a valid consent.

 

Finally, if the provider can show that no reasonable patient would refuse the procedure even knowing the risks, there can be no claim for failure to obtain informed consent.

 

Significantly, 766.103 does not demand that the actual patient understand the risks: only that a reasonable individual would understand. Therefore, expert testimony is required to resolve a dispute about whether the information imparted by the physician (consent is the responsibility of the provider, not the hospital) met with the standard of care.

 

Alternatively, where there has been no consent, no expert testimony is needed. Where a procedure is done without any consent or against the patient’s wishes (formerly termed a “battery”), there is no need to consider whether the non-existent consent comported with professional standards. Therefore, there is no need to have an expert to educate the jury on the subject.

 

Disclosing risks of a medical procedure, such as bleeding, infection and death, does not insulate a provider from liability if the provider performed the procedure negligently. In short, patients cannot consent to malpractice. However, a well-drafted and well documented informed consent can be an effective defense under the right circumstances.